By Leslie King O’Neal
The American Arbitration Association®[i] in partnership with the Early Dispute Resolution Institute,[ii] now offers Early Dispute Resolution Mediation (EDR). EDR Mediation is a structured process, not a one day, all or nothing event. The flexible, four step process allows parties to make informed, risk-based settlement decisions. The cost is similar to traditional mediation.
Structured Risk Analysis & Targeted Information Exchange
EDR Mediation includes structured risk analysis so parties can evaluate potential outcomes and determine realistic settlement value. It also uses targeted information exchange, focusing only on what is necessary to assess risk and move toward resolution.
Trained EDR Mediators
AAA has created a panel of trained EDR mediators who follow the EDR Institute’s Guidelines[iii], providing best practices for risk assessment, forecasting, bias mitigation, and negotiation. Trained AAA EDR Mediator with demonstrated experience in the EDR process and decision-tree analysis facilitate each session.
Structured Four-Step Process
EDR Mediations follow a structured process over a defined timeframe. While typically conducted virtually, in person sessions are available on request. The mediation is usually concluded in less than 30 days.
- Initial Dispute Assessment—Parties develop a shared understanding of the dispute by providing key documents and working with the EDR Mediator to identify the core claims and issues.
- Focused Information Exchange— Each party requests the specific documents and information needed to assess risk and make informed settlement decisions.
- Mediator Assisted Risk Analysis-– Parties evaluate costs, risks, likely outcomes, and business interests to develop a realistic settlement range, with the EDR Mediator’s assistance.
- Negotiation & Resolution– The EDR Mediator facilitates risk-informed negotiation, helping parties move beyond positional bargaining. If resolution isn’t reached, parties may proceed to traditional mediation or arbitration.
Mediation May Proceed with Arbitration
EDR Mediation can proceed concurrently with arbitration for maximum efficiency in resolving the dispute. Here is a sample EDR mediation clause with an arbitration option:
Any controversy or claim arising out of or related to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The parties agree to try to settle the dispute, after a demand for arbitration is filed, by Early Dispute Resolution (“EDR”) Mediation administered by the American Arbitration Association under its Commercial Mediation Procedures with an EDR Mediator selected from the AAA’s EDR Mediation Panel. Such EDR Mediation shall proceed concurrently with arbitration and shall not be a condition precedent to any stage of the arbitration.
EDR Helps Clients Achieve Better Mediation Outcomes
By helping parties focus on key issues, helping them understand risk, evaluating potential outcomes, and determining realistic settlement values, EDR Mediation provides opportunities for better and faster mediation outcomes.
Making Mediation More Effective
Can mediation be speedy, efficient and fair? Several prior blog posts have offered suggestions on ways to improve mediation to accomplish these goals.
[i] https://www.adr.org/panel/edr-panel/
[ii] https://www.edrinstitute.org/ The Institute offers a five-hour on-demand course for litigators, in-house counsel and neutrals who want to learn the EDR Mediation process. CLE: 4.0 hours-General; 1.0 hour-Ethics (varies by state)
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