To LITIGATE or MEDIATE. Now there’s a better way: PLMM.Dec 21st, 2013 | By critellilaw | Category: Alert
Social Entropy, The Kubler-Ross model
Your client has one goal in mind: Resolve the dispute quickly and effectively. Traditionally we only had two methods of accomplishing that goal: Settlement or Judgement. One either settled out of court or went to trial and let the jury resolve the dispute by judgment. Experienced taught that an early settlement was tantamount to surrender. In order to get a reasonable settlement you had to get to the courthouse door. The human and economic cost: twenty-four months of wasted time and a lot of money. There had to be a better way.
Some people favored eliminating the jury and court trials in favor of private arbitration. But that too proved to be an extremely expensive option that often resulted in an unacceptable resolution with no chance of appeal –and it still took two years. There had to be a better way.
In the late 1980’s another dispute resolution tool emerged called Mediation. Iowa lawyers led the nation in testing and exploring mediation as a dispute resolution tool. We went back to school, took courses, and obtained training to become Mediators to help other resolve their disputes without the necessity of going to trial. We have been very successful. Today 9 out ot 10 cases that are filed in court settle before trial and mediation is the tool for resolutoin in 80% of those cases. However we still have a problem. Remember when I said that early settlement usually resuted in a surrender and serious settlement only came at the courthouse door. Unfortunately the same is also true of Mediation.
After acting as a Mediator in all types of complex civil cases, for over 30 years, on two continents, I can honestly say that there has to be a better way. Our present mediation theory does not work. It is far too expensive and takes too much time. One should not have to go through the process of litigation, scorched earth discovery and expansive summary judgment motions and get to the courthouse door before mediation occurs.
Experienced English barristers and American trial lawyers (notice I said trial lawyers and not litigators — there is a BIG difference) have begun searching for a better way. I London we call it Mediation Advocacy and we’re starting to teach and train about it at the Middle Temple Advocacy courses. I was fortunate to be one of the early supporters and introduced the initial training at the University of Toledo College of Law several years ago and have addressed the concept for several years at the annual meeting of World Mediation Congress.
Now the good news: We have found a better way. Working with psychiatrists, psychologists and information technologists PLMM has emerged; it stands for Pre Litigation Multimedia Mediation. It’s a dispute resolution tool that is designed to move the Risk Appreciation / Cost Benefit analytical experience from the courthouse door back the point before litigation is filed.
PLMM unites three unlikely concepts: Social entropy, the Kubler-Ross model and the philosophy of Marshall McLuhan. Social entropy is a concept that recognizes the tendency of social networks to break down over time, moving from cooperation and advancement towards conflict and chaos. A dispute, by its very nature, is an evolving entropic situation. The Kubler-Ross model is well recognized in social psychology concerning how we process and cope with grief situations – in other words, how we attempt to make order out of chaos. You experience the philosophy and work of Marshall McLuhan every time you watch television. He’s famous for saying “The medium is the message.” His pioneering work in television advertising forms the basis for all electronic commercialism.
So, how exactly does PLMM bring these three unusual concepts together to create a dispute resolution strategy? I’d be more than happy to explain it all — but not on the Internet. As Chief Judge Chuck Wolle once told me: “Don’t teach your card tricks to people you play poker with.”
We’ve tried it on some extremely complicated cases and it works. At a minimum it requires at least three months of strategic planning and preparation so it should not be used in cases where the statute of limitation or a contractual deadline is loaming.
There is a better way. E-mail us and we’ll set up a video conference and explain how it works so you can consider it for your client.
How Book a Video Conference
Check out the Appointments Calendar on the right side of this page for an open time. Usually we try to keep Tuesday mornings and Thursday afternoon open for video conferences. E-mail us at Video@CritelliLaw.com to confirm a time that works for you. We’ll send you a password for the conference. To converence by video you need only to be at your computer or on your smartphone. No special equipment or software is needed. You don’t even need a camera. At the appropriate time simply log on to this link:
and type in the password we gave you. If your computer has a microphone and speaker you need do nothing more. If not, simply call the following phone number United States: (646) 982-0002 OR United Kingdom: +44 20 3535 0624 and put in this Access Code: 374-800-312.
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The following Video Brochure describes our Mediation and Dispute Resolution Services.