Dispute Settlement Counsel by Michael Zeytoonian.
(second in a series)
Last blog post (Why aren’t more people using CL?), we noted that people in disputes often overlook a very important consideration: how information is exchanged. It is one of three critical questions when it comes to resolving disputes:
1) Are the parties willing to focus on resolution by intention and design and not go to court?
2) What is the most efficient process (the best fit) for your particular dispute situation?
So how do parties handle the exchange of relevant information? Old school dispute resolution, via litigation, was the “hide the ball” approach, by which parties try to hide or minimize that information that hurts your position and hope the other side doesn’t find it. At the same time, parties often exaggerate and shine the spotlight early and often on that information that supports their positions.
We live in an information age now. Hiding information is pretty much impossible. IT forensics experts can not only find what is there but where it came from, what came before it and where it has gone. Besides the fact that information is impossible to hide, court rules today compel parties and lawyers to disclose everything in litigation. Failure to do so can subject parties and lawyers to sanctions and other adverse consequences, including defaulting. So it’s really no longer a question of whether information will get exchanged, but only a matter of when.
Knowing this, it doesn’t help any party to prolong the information sharing process. There are only downsides to delay – it wastes time and costs lots of money. In 20 years of litigating and mediating cases, I’ve never met any party that wanted to prolong the process of discovery or have it cost as much as possible. Prolonging and complicating the discovery process only benefits one set of players in a case. You guessed it: the lawyers.
Please repeat this to yourself and ponder it as long as it takes to take productive steps. No advantage to prolonging discovery. Only the disadvantages of costing more and taking longer. Are you wondering why parties shouldn’t have some control over how information is exchanged and the pace and speed of the dispute resolution?
Parties can and should control these things. The value of CL is that it allows the parties to control the speed and scope of the information exchange. There is one simple rule to information exchange in CL: The parties MUST EXCHANGE ALL RELEVANT INFORMATION. Their failure to do so will most likely result in the termination of the CL process. This is one of the most important and valuable features of CL. It gets all the relevant information on the table right away. And the enforcement mechanism has some teeth: If a party doesn’t comply with this rule, game over. Your chance to resolve through the more agile and streamlined CL is gone.
That rule not only speeds up the process and reduces the costs. It also changes the way the parties look at discovery. They now view the information exchange as helpful to their efforts at developing the best resolution options. The more information shared, the better it is for everyone involved. More information and more transparency are desirable. Spending hours and weeks sifting through boxes of useless and irrelevant documents is a waste of time avoided by CL.
This information exchange is one key ingredient that makes CL so different from either litigation (too much discovery) or mediation (not enough discovery). It is a game changer which transforms the focus and feel of the discovery process from one of driving parties further apart to joining and bringing them together for a collaboration.
Parties who want to resolve a dispute efficiently would be wise not to overlook this issue and give it the important consideration it deserves.
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