Alert readers have noticed that Peter Benner and I have been having a conversation about planned early dispute resolution (PEDR) in the comments to a recent post of mine on the subject.

Peter, a mediator and ironman, is a friend with whom I share an interest in encouraging lawyers and parties – especially businesses – to (wait for it) plan for dispute resolution early in a dispute rather than going through lengthy litigation before they are ready to talk settlement.

Indeed, as you may have noticed, Peter is quite passionate about this.

We are going to continue this conversation in a series of posts rather than comments.  Subscribers to the blog don’t get notice of the comments and this will enable them to see all the posts.

I don’t know if we will match Andrea’s 27-zillion-part series on her trip to Israel, but we will give it a go.

You are welcome to join the conversation by posting comments. You never write. You never call.

We will pick up the conversation with the comment that Peter just posted.

We have been wracking our brains – a dangerous operation with unstable objects – about how to institutionalize PEDR given the prison of fear that keeps lawyers and parties from routinely using it.
Peter suggested that stories are vivid ways to get through to people. He referred to the “SUCCESs” model of using Simple Unexpected Concrete Credible Emotional Stories.

He told a story of a case he was involved with as a lawyer in which the parties spent a lot of time and money and got a really bad lose-lose result.

I will pick up the action from there.

And I will start by repeating that I don’t really know how to get people to institutionalize PEDR or ADR generally.  And, at this stage in our movement, a major challenge is to get people to do it well, not just use low-quality versions.

I assume that using compelling stories can be a useful tactic – but I think that this is just a tactic, not a strategy getting at the fundamental dynamics.

I think it may help to understand decision-makers’ motivations.

I suspect that part of it is that everyone just gets mad and isn’t in the mood to reason.  All it takes is one person to do something – maybe just have a bad attitude or snippy tone – to set off a chain reaction of anger that is hard to stop.  Kinda like preteens in the playground.

In a classic article, Sally Engle Merry & Susan S. Silbey, What Do Plaintiffs Want? Reexamining the Concept of Dispute, 9 Just. Sys. J. 151 (1984), researchers rebutted claims that people didn’t use mediation because they didn’t know about it.  Instead, they found that people often felt that they had tried, unsuccessfully, to be reasonable and that they needed the courts to help them deal with unreasonable counterparts.  Although the title of the article refers to plaintiffs, this dynamic can apply equally to defendants.  The research involved small claims but I think this dynamic is widely applicable.

In addition to anger, I suspect that parties often are driven to a large extent by fear of loss (or “loss aversion”).  Presumably, some of the fear is about loss of parties’ financial resources.  But I suspect that much of it involves status and legitimacy, not just dollars-and-cents.

I think about the sociological concept of institutional isomorphismwhich I learned about in grad school.  This theory argues that there are three forces prompting organizations tend to conform to some norm.

First, coercive isomorphism is when organizations are forced to comply with some requirements.

Second, normative isomorphism is when organizations follow the norms of professionals.

Third, mimetic isomorphism is when organizations are uncertain how to proceed and “play it safe” by mimicking some respected leaders.  Mimetic isomorphism is illustrated by the old saying that “no one ever got fired for buying an IBM computer.”  (Kids, this was back in the day when PCs were relatively new and IBM was the far-and-away leader in the market.)

Thus, barring some authority forcing businesses and law firms to use PEDR, this theory suggests that they are likely to do so when following respected professional leaders in the bar and/or high-status companies that are seen to do so successfully.  This provides the emotional security of feeling that they are doing the “right” thing (and/or protects them from criticism for doing the “wrong” thing).

I think that stories of catastrophic failures (like the one you described) or success in using PEDR can be helpful for leaders to rationalize their decisions.

(I also suspect that leaders often similarly use cost-benefit arguments to rationalize decisions they want to make – and ignore these analyses when they don’t want to pursue some supposedly efficient strategy.)

To the extent that this is the case, using compelling stories is unlikely to be effective unless it reinforces the leaders’ predispositions and desires.

We might also discuss literature on the diffusion of innovations, but I will stop here for now.

Peter, what do you think business executives really want when it comes to dispute resolution?  What about partners in big law firms?  What do you think about my analysis of using the SUCCESs model?

Click here for the next part in the conversation.

John Lande is the Isidor Loeb Professor Emeritus and former director of the LLM Program in Dispute Resolution, at the University of Missouri, School of Law. He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison. He is also an avid writer and contributor to Indisputably.org