Excerpts from an April 2022 presentation given by Dan Cicala to the American Bar Association’s Dispute Resolution subcommittee on Early Dispute Resolution
The following represents my personal notes which formed the foundation of a presentation I gave in April to a national forum of law professionals focused on Early Dispute Resolution … I wanted to take the time to expound on these notes but thought that, in light of the important need to foster dialogue between people who share different points of view, exacerbated by last week’s Supreme Court Decision and with the Fourth of July Holiday upon us, there is more value in getting the message out now. Who knows? It may spark more dialogue!
I was raised in the Construction Industry ... the constructing part of it. As an adolescent, as early as my general contractor father could enlist my services, I started out as a runner, laborer and handyman of sorts. Looking back, it seems as though this experience coexisted with the point in time when I learned to brush my teeth, earlier than my memory allows me to recall! My development continued and I eventually became somewhat skilled with my hands in various trades before moving into project supervision and various forms of management before attending law school, becoming a construction litigator and then organically gravitating back to construction as an Owner’s Representative. In this capacity, the polestar is striving to protect clients, solve problems and create excellent construction experiences ... the essence of what Fidevia does day in and day out.
In sketching out this article, and on a very personal level, I am likewise realizing that this represents who I am, who I strive to be... and, again, by extension, the core of Fidevia’s principles.
After a lifetime in this industry, 25 years as a construction attorney and the last 19 as the leader of Fidevia, I have come to appreciate that the true value is in preventing disputes. Sure, most of the money is made in dispute resolution and we need to do that if disputes exist; however, the higher ground is in preventing disputes before they happen.
Looking back 30+ years ago, the Construction Law industry was besieged with extensive, lengthy and costly litigation which eventually gave way to Arbitration as a shorter, less expensive path to dispute resolution – and then Arbitration, too, developed many of the same negative attributes of litigation (and some others), providing the seeds for a meaningful rise in the use of mediation. Thereafter, in the last 20 years or so, the industry started to embrace Early Dispute Resolution (EDR) and crafted many procedures and roles, with endless variations and all with the intention to solve problems at an early stage. By the time I started Fidevia in 2003, though, I was already sold on dispute prevention ... again, not because there is money in it … but because it is the right thing to do.
It is of course important and necessary to be competitive and to strive for the highest level of professionalism and excellence in all we do but, across all industries and relationships, we need less divisiveness in our dialogue, less bullying and less time spent arguing, fighting, separating, coming to blows, etc. We all suffer for it in so many ways.
To the notes … and as an introduction and without getting into the weeds … I am proud of Fidevia’s track record of dispute prevention and so very grateful for everyone at our firm for so many reasons, but especially for caring about each other, serving our clients as if they are part of our family and in respecting everyone we work with, with dignity and love … what truly matters most at the end of the day.
Dispute Resolution (DR) is an Enormous Industry.
The Dispute Resolution space is comprised of attorneys, mediators, arbitrators, judges, consultants and experts of all sorts.
Early Dispute Resolution (EDR) is part of the DR world. Why does it exist?? Overburdened courts, distrust of various forms of ADR, length of process, cost, diversion of focus from more important productive endeavors, impact to reputation, etc.
Dispute Prevention (DP) is foundationally EDR …
Virtually everything in this outline is relevant to EDR and DP, with some very minor but critical differences.
When Does EDR Start?
At the time of a Claim?
At the threat of a Claim?
When the issue is communicated - spoken verbally, raised at the table, communicated in an email, made in front of others?
Actually, when EDR starts is best illustrated by Christopher Nolan’s movie Inception ... Leonardo DiCaprio is an expert at planting paradigms and ideas into someone’s subconscious .. and, yes, that is when EDR starts or at least right after that.
We all have beliefs and expectations and EDR essentially starts when there is a disconnect between those beliefs and expectations and what is perceived to be or about to happen.
What Causes Disputes? Things That Cause Conflict – Belief and Expectation Disconnects.
Conflicts of interest(s), unalignment of interest(s) – not in the legal sense but in beliefs and expectations.
The emotional factors - pride, ego, selfishness, insecurity, fear, anger, sense of injustice and betrayal.
Laziness of leadership – ambivalence of leadership to the needs of the parties, lack of care about emerging disputes.
… and critically, like anything else, the longer the problem (or wound, if you will) festers, the harder it is to cure.