Rather than trying to resolve a conflict once it erupts—whether by traditional or alternative methods—the interests of all stakeholders are better served by trying to avoid the dispute in the first place.
Over the past 40 years, the legal profession has made significant strides in the field of dispute resolution. Major innovations in the courts and expanded use of a host of innovative alternative dispute resolution processes have made the field of dispute resolution more effective and efficient than ever before. Despite this, large sums of money, energy and resources are regularly spent addressing a constant stream of disputes, much of it ending up in litigation. This high cost of dealing with these disputes is paralleled by a tremendous loss of productivity, fractured relationships and human angst until resolution is reached.
The disciplines of medicine and law have always had much in common and each provides opportunities to learn much from each other.
One trend which has taken hold in the field of medicine is known as “predictive analytics,” a process whereby data (largely from electronic health care records and databases) are used in the development of predictive algorithms to improve patient experiences by anticipating and avoiding negative outcomes. Recent articles in publications as diverse as Hospitals & Health Networks and the Harvard Business Review have discussed the use of predictive analytics in situations such as hospital-acquired infections and cardiac readmissions. At its core, the concept seeks to avoid an adverse outcome such as an infection or readmission rather than treating it once it occurs. The concept of predictive analytics is of course not unique to the world of medicine. It has been used with considerable success in a number of industries and has been successfully employed to identify trends and assist in decision-making in professional sports. (Are there any Oakland A’s or Boston Red Sox fans reading this?)
The application of predictive analytics to the legal world is immediately apparent. Rather than trying to resolve a conflict once it erupts—whether by traditional or alternative methods—the interests of all stakeholders are better served by trying to avoid the dispute in the first place.
Indeed, on the spectrum of all dispute resolution processes, dispute prevention or avoidance is the very first one. Not only are substantial costs and inefficiencies avoided, but the parties are able to achieve a resolution at the outset which meets their mutual interests.
While dispute avoidance is an exercise which is available in any potential disagreement, it produces its most dramatic results in situations of recurring disputes frequently found in the corporate arena.
Just as predictive analytics in medicine can identify patterns and alternative courses of action in patient care, so can the field of dispute resolution examine common characteristics of recurring disputes to extract trends and factors which identify alternative courses.
The dispute resolution audit is a particularly useful method for corporations and other entities which experience recurring patterns and cycles of disputes. A review of these disputes with the objective of analyzing common elements of the disputes could be enormously instructive. It could well lead to the use of a modified course of action at some point in the development of the dispute and thus a resolution at an earlier time.
Mediators of commonly recurring disputes often offer insights into why claimants felt they were required to pursue a dispute resolution process. Claimants often disclose that they would have settled the matter at an earlier time but did not because of one or more of the following laments:
• I couldn’t get their attention
• No one would talk to me
• They treated me disrespectfully
• I was always shuffled off to the most junior person available
• They never said that they were sorry that this happened
Knowing why matters don’t settle at an earlier time and giving special attention to the elements causing the failure can go a long way in putting the disagreement back on track toward earlier resolution or better yet avoiding the dispute in the first place.
A number of specific types of recurring disputes have experienced considerable success in anticipating and avoiding disputes by an analysis of past disputes: construction industry disputes and medical malpractice claims are but two examples. However, overall, during the past 40 years, while great strides have been made in improving dispute resolution processes making them more efficient and partly controlled, commensurate thought and effort has not gone into dispute avoidance and dispute anticipation.
The use of predictive analytics in medicine can initially be motivated to save money or reduce costs. Specifically, reducing hospital readmission or avoiding recurring types of hospital-acquired infections reduces penalties from payors such as Medicare. (The Hospital & Health Networks article reports that data released by the Centers for Medicare and Medicaid Services reveals that 769 hospitals had payments lowered because of low performance on hospital-acquired infections.) However, the ultimate and undoubtedly overarching motivation is better patient care and safety.
So too in the dispute resolution field, while corporations are motivated by a desire to reduce dispute resolution transactional costs as well as unpredictability of outcomes, the inevitable byproduct is a better quality of justice where disputants exercise self-determination, party control of the process and reduce lengthy delays, and inefficiencies.
Of course, the applicability of hospital predictive analysis to legal dispute resolution is not 100 percent. But it does provide a model which can be very instructive.
Nor do the analyses in connection with dispute resolution processes need to develop the complex algorithms employed in the medical field. What is essentially required is the ability to identify critical decision-making junctures in the life of the dispute and to make reasonable prospective decisions and identify trends based on an intelligent retrospective analysis of past disputes.
The concept of predictive analytics holds much promise in the field of dispute resolution.
The noblest form of dispute resolution truly is dispute avoidance.