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Can A Checklist Lead The Adversarial System Into The 21st Century?

Recently, I suggested that surgeon-author Atul Gawande’s Checklist Manifesto pointed the way toward a more effective and efficient means of responding to frivolous claims than potentially protracted litigation. Skeletal checklists for just such dispute resolution processes are already in daily use by peer mediators in our public schools.  Because those lists are scalable, they can be readily adapted to address conflicts of far greater sophistication and complexity with minimal effort.

But before the solution,

The Problem

If your physician suggested 17th century medical treatment today – the use of leeches or “bleeding” to relieve your suffering –  patient and physician would soon be packed off to a quiet mental hospital for treatment.   Yet we continue to use dispute resolution processes little changed since the British abolished the Star Chamber in 1641 and enshrined the jury trial as the preferred Anglo-American response to conflict.

It is not simply the age of our adversarial processes that make them inefficient and ineffective today.   The system is inefficient because it has become encrusted with thousands of layers of procedural “improvements” over the course of 400 years – improvements that burden the ship of justice in the way barnacles weigh down ancient square-rigged Brigantines.  And they are ineffective because they are consistently and demonstrably prone to error.

As  the research reported in Beyond Right and Wrong:  the Power of Effective Decision Making for Attorneys suggests, the only sensible way to evaluate how well litigation is presently serving its purpose is to test the accuracy of the settlement decisions that resolve ninety percent of all lawsuits filed.  When researchers investigate those decisions, the error rates fly right off the charts.

According to Beyond Right and Wrong, Plaintiffs make so many settlement “decisional errors” that their interests would be better served by flipping a coin.   And though defendants make fewer such errors – they’re still wrong 25% of the time.  And when they’re wrong, they’re very very wrong – averaging an unnecessary expense of nearly $1.5 million one time out of four.

If your contractor erred twenty-five percent of the time and if his error cost you $1.5 million on each of those occasions, you simply wouldn’t hire him again.  Problem solved.  But what if all contractors erred to your considerable economic disadvantage 25% of the time?  What would you do? You’d reject contracting as a profession and seek out a new system for building a skyscraper, that’s what you’d do.


Victoria Pynchon

Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all… MORE >

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