Business Conflict Blog
New York Law School has announced the creation of a new Program on Alternative Dispute Resolution, leading to a Certificate in the field. The Program emphasizes skills, in addition to doctrinal studies, and recipients of the Certificate are required to engage in experiential such as externship placements at ADR organizations; clinics in such fields as mediation and securities arbitration; and out-of-class simulations such as iterative role-plays or other hands-on training.
Additionally, the Program will develop a battery of non-student activities, including on-campus speaker series and “bespoke” trainings and CLE offerings to take place in New York City law firms, municipal agencies, court-annexed programs, and internal corporate legal departments.
A group of leaders of the ADR community has agreed to serve on the Advisory Committee for the Program. These include representatives of various stakeholders in the effort, including ADR organizations (CPR, AAA, IMI, JAMS), private law firms (Patterson Belknap, Debevoise & Plimpton), corporate law departments (General Electric, Edward Jones), NGOs, sitting and retired Judges, ODR specialists, and public agencies.
I am honored to have been appointed Director of the Program, as well as continuing to teach a course in Negotiation and another in International Commercial Dispute Resolution. Other faculty of the School offer courses including domestic arbitration, mediation (clinic), securities arbitration (clinic), and various negotiation courses relating to specific fields. The New York Law School Dispute Resolution Team recently won top honors in a national mediation competition, and participation on that co-curricular activity also fulfills Certificate requirements.
It is an exciting new venture, and fingers are crossed.
When I served at the CPR Institute we periodically reminded users of arbitration that the Institute had devised a procedure whereby parties could contract for appellate review of arbitration awards. I think I am correct that during my 10-year tenure no one ever availed themselves of these procedures, which on their face deprived arbitrated outcomes of one of their defining attributes — finality.
Nevertheless, one of the defining attributes of the American Arbitration Association in the past several years is its responsiveness to end-user concerns, and the Association reports that one of those concerns is a procedural safeguard against nutty awards. So it has promulgated a revised set of Appellate Arbitration Rules. The AAA explains:
The AAA’s new set of Optional Appellate Arbitration Rules (effective November 1, 2013) provides parties with a streamlined, standardized, appellate arbitration procedure that allows for a high-level review of arbitral awards while remaining consistent with the objective of an expedited, cost effective and just appellate arbitral process.
Traditionally, courts use narrowly-defined statutory grounds to set aside an arbitration award. Alternatively, these new rules provide for an appeal within the arbitration process. The appellate arbitral panel applies a standard of review more expansive than that allowed by existing federal and state statutes to vacate an award. In this regard, the optional rules were developed for the types of large, complex cases where the parties think the ability to appeal is particularly important.
Sometimes I just feel out of date. I understand arbitration to be the tool of merchants who, in the course of their business, encounter disagreements with commercial counterparties that require quick and decisive disposition in order not to interrupt the business. You are trading 1000 bales of raw cotton a day, and over the course of a year some of those 365,000 bales will either be of disputed quality or will not be paid for. So you have the cotton arbitrator make decisions. Some go for you and some against, but the bales keep rolling in and keep rolling out and over the year it all evens out. In other words, arbitration is a way to make sure cotton merchants don’t spend a lot of time on stuff other than cotton.
Clearly, not so today. Arbitration is conducted by lawyers and time is spent examining the hard drives of folks’ computers. Moreover, we’re not talking cotton bales any more. Folks are subject to arbitration — completely unknowingly — if they hook up a cable to their TV, buy a share of stock, or open a credit card account. Indeed, one of my favorite illustrations of the place arbitration has taken in the American mentality is this sign, posted on the door of a retail establishment:
(By the way, love that “American Mediation Association,” don’t you?)
So, according to the AAA, users of arbitration want an opportunity to put down their cotton bales and not only argue over one of the bales, but spend a second day arguing over the outcome of the argument they just had. Meanwhile, the bales pile up at the wharf. Surprises me, but, like I say, some days I just feel out of date.
A reminder was recently received of the ABA Dispute Resolution Section’s 11th Annual Advanced Mediation and Advocacy Institute at the Omni Hotel in Nashville, TN, on November 21-22, 2013.
Says Marnie Huff, the co-Chair:
The Institute is designed for litigators, mediators, judges and in-house counsel. Click here to register.
Each plenary panel features an expert mediator, a high-powered in-house counsel or judge, and a skilled outside counsel. Break-out session discussions are facilitated by leading mediators.Learn from Experienced Practitioners
- Proper drafting of a mediation agreement and retention letter
- Proper use of risk analysis
- Emotional and psychological issues in mediation
- How and when to use an apology
- Ethical dilemmas
- Developing and marketing a dispute resolution practice
- Advanced techniques for adding value
“It is one of the most worthwhile programs I have attended in the nearly 40 years I have been in this business.”
“The Faculty are excellent, and the opportunity for advocates and mediators to interact in small facilitated groups made this and exceptional and valuable program for mediators and advocates alike.”
“Excellent format. Produced a broad range of perspectives and experiences. Very valuable!”
Note: This program has a limited capacity of participants. Once the capacity is reached, individuals will be placed on a waiting list in case of cancellations.
Tom Stipanowich called the Delaware Court of Chancery’s arbitration program “a veritable trifecta of procedural advantages for commercial parties, including expert adjudication, efficient case management and short cycle time and, above all, a proceeding cloaked in secrecy.” But he warned that its constitutionality was in doubt. Now the Third Circuit Court of Appeals has, indeed, ruled it unconstitutional. The grounds for the ruling go to some of the most profound assumptions of access to justice, and the distinction between public dispute resolution that is costly, long and uncertain, and alternative processes that the disputants privately agree to in order to avoid those encumbrances.
The arbitration program was established in 2009 as a way of “preserv[ing] Delaware’s preeminence in offering cost-effective options for resolving [commercial] disputes.” Qualified parties mat consent to avail themselves of arbitration before the same Chancery Court judges who would otherwise try the case. The initial fee is $12,000 plus an additional $6,000 per day thereafter. The proceeding is conducted in a Delaware courthouse during normal business hours. The award is entered as an order of the Court of Chancery and is appealable to the Delaware Supreme Court, applying the deferential standards of the Federal Arbitration Act. Pleadings are confidential and not publicly docketed, and public access to hearings and filings is denied.
This procedure was challenged in federal District Court on First Amendment grounds. The District Court found, and the Third Circuit affirmed, that the constitutional ban on governmental abridgment of freedom of speech, determined by the Supreme Court to extend to public access to criminal trials, is violated when a publicly-funded court conducts civil proceedings barring public access. The right of public access is not absolute; the Third Circuit noted that it has declined “to extend the right to the proceedings of judicial disciplinary boards, the records of state environmental agencies, deportation hearings, or the voting process.” But when a proceeding taking place in a public courtroom is of the type to which there is a “tradition of accessibility,” such as a private commercial dispute, “a presumption of public access is established [that] may only be overridden by a compelling government interest.”
The District Court’s logic was that the arbitration was “sufficiently like a trial” to which public access is a right, that public access cannot be denied. The Third Circuit used a different approach, of “experience and logic.”
The “experience” is that the place and nature of the adjudication have historically been open to the press and general public. And the court reviewed the history of access to public trials of private disputes and to the courthouse itself. It also noted that the development of arbitration involved private adjudication by privately chosen tribunals, not publicly paid judges, and indeed developed as an alternative to adjudication by courts.
The “logic” is that “access plays a significant positive role in the functioning of the particular process in question.” All of the benefits that accrue from public access to civil trials of business disputes would accrue with public access to the arbitration of those disputes when that proceeding takes place in public Delaware courtrooms. Dismissing arguments that public access would risk disclosure of sensitive proprietary information, or would result in the loss of “prestige and goodwill” on the part of the disputants, or that public airing of the dispute would encourage hostility and belligerence, the Third Circuit says, in effect, “join the crowd.” If these are attributes of public trials, then arrange to resolve your disputes privately — but not in a public courtroom with public servants adjudicating.
In concurrence, Judge Fuentes notes that, were the First Amendment issues to be resolved, it may be that no constitutional obstacle presents itself to sitting judges’ conducting private arbitrations. And in dissent, Judge Roth sees no problem with the Delaware legislature’s encouragement of highly-qualified arbitrators’ conducting private proceedings in light of (what she perceives as) the growing demand for arbitration services and the legitimate interest of the legislature “to prevent the diversion elsewhere of complex business and corporate cases.”
Unaddressed in this challenge is a feature of the Court of Chancery’s arbitration program that I find more troubling: That two tracks of justice are provided to similarly situated disputants, distinguished by payment to the court of a substantial fee. If you cough up $12,000 or more, you get a 90-day schedule, waiver of procedural requirements, streamlined discovery, and immediate docketing of a confidential outcome. If you are not, you join the queue of all the other litigants before the Court of Chancery, with motion practice, extensive discovery, public scrutiny, engagement of local counsel, procedural guidelines, and very substantial delays. (Indeed, the Court itself recently observed that delays of more than three years from petition to trial are not unreasonable.)
The question whether private adjudication of disputes is a social benefit or a threat to the development of the common law is a perennial one. The question whether public courtrooms can be hired out by private disputants, and sitting judges be deflected from their public dockets in order to adjudicate non-public disputes, is more recent. But the question whether, if you pay the court clerk $12,000, you can get faster and cheaper justice than those who don’t, ought to have been obvious.
The ABA Dispute Resolution Section will again observe “Mediation Week” on October 14-18, 2013, encouraging local events and teaching sessions to foster the use of mediation in various contexts. Attorney Peter V. Arcese has assembled a panel of mediators including myself, Patrick Westerkamp and Eunice Salton to a discussion on “Entrepreneurship and Mediation” to be held at Indiegrove, 121 Newark Ave., Jersey City, NJ at 6:30 pm on Wednesday, October 16.
Entrepreneurs are uniquely situated at the intersection of commerce and community. This timely panel discussion will educate entrepreneurs about applications of commercial, community and transformative mediation relevant to their businesses and industries, as well as the communities they serve. Entrepreneurs are acutely aware of the need to optimize time and cost, know that managing, resolving and transforming conflict increase productivity. They also thrive on diversity by understanding the needs and relations of their constituents.
It should be a provocative discussion, and I hope those in the area will make it a point to attend and participate.
Our Italian correspondent, Avv. Giorgio Grasso, has prepared a useful report on the reintroduction of mandatory civil and commercial mediation in Italy.
The new legislation — replacing a 2010 version that prompted a lawyers’ strike and was declared unconstitutional in 2012 — amends the scope of the original scheme and is meant to last for an experimental four years. Dr. Grasso’s article appears here.
Mediation in Italy has had an interesting and eventful recent history. We’ll just have to see whether the notorious backlogs and excesses of the Italian commercial courts are assisted — and business disputes are more rationally resolved — with this new system.
Readers might be interested in taking a look at the User Guide and other resources developed by the Planned Early Dispute Resolution Task Force of the ABA Section of Dispute Resolution, which was co-sponsored by the AAA, CPR, and JAMS.
The User Guide, largely reflecting the work of Task Force Chair John Lande of the University of Missouri School of Law, is designed to help businesses plan for and manage disputes at the earliest appropriate time. It includes a podcast describing how lawyers can help clients get good results – and make a good living. And it includes generic PowerPoint presentations for business and legal groups to explain the basic concepts of this project.
These tools were designed to be immediately helpful to practitioners. It would be interesting to hear whether, in fact, they prove to be.
The American Arbitration Association has issued new Commercial Arbitration Rules effective October 1, 2013. The changes seem designed to better serve disputants and enhance the commercial rationality of arbitration under the AAA’s auspices. As to be expected from the AAA, they are elegant and reflect the thinking of many stakeholders.
Some changes include:
New Rule R-9, which designates a mandatory mediation step in the arbitration process, subject to the right of any party unilaterally to opt out;
Rule R-21, regulating the Preliminary Hearing and setting forth express topics to be covered as soon as practicable after the appointment of the arbitrator;
Further arbitral authority and control of the exchange and production of information, including electronic information, in an effort to encourage prompt and economical resolution;
Enhanced arbitral enforcement powers in Rule R-23, in the context of electronic discovery, allocation of costs of discovery, and addressing willful non-compliance with any order;
R-33, specifically granting arbitrators the authority to make rulings upon dispositive motions;
R-38, authorizing and making mandatory certain emergency measures of protection;
R-57, strengthening the options of an arbitrator in the event of a party’s non-payment, including limiting the nan-paying party’s ability to assert or to pursue claims;
R-58, authorizing sanctions where a party fails to comply with its obligations under the rules or with an order of the arbitrator.
Other changes address less critical areas of the process. I particularly welcome the default expectation of mediation of claims filed with the Association. A few arbitrators have expressed concern that this might drive cases to mediators and further decrease an already slowing pace of commercial arbitration. First, I doubt it. Second, isn’t that what all of us in the dispute resolution field are seeking — the early and economical resolution of disputes?
Several list serves and correspondents have taken note of the July 26, 2013 decision of the Seventh Circuit Court of Appeals in the matter Benes v. A.B. Data, Ltd. The opinion, authored by Chief Judge Easterbrook, is not earth-shattering. But the case is diverting nevertheless and might bring a smile to students of EEOC mediation.
Plaintiff Banes had worked at A.B. Data for only four months when he filed a charge of sex discrimination with the EEOC. The agency arranged a mediation. After a joint session, the parties retired to caucus rooms while the mediator went back and forth between them.
The mediator conveyed a settlement offer to the plaintiff that Banes apparently thought too low. According to Judge Easterbrook:
Benes stormed into the room occupied by his employer’s representatives and said loudly: “You can take your proposal and shove it up your ass and fire me and I’ll see you in court.” Benes stalked out, leaving the employer’s representatives shaken. Within an hour A.B. Data accepted Benes’ counterproposal: it fired him. He replied with this suit [citing] the anti-retaliation provision of Title VII…. His claim of sex discrimination has been abandoned.
A.B. Data was granted summary judgment, the trial court finding that Benes had been fired for misconduct during the mediation, not for making a charge of discrimination. On appeal, the Seventh Circuit affirmed. Interestingly, it “put to one side” Benes’ words, concentrating on the fact that he entered the other caucus room at all. ”Mediation would be less useful, and serious claims of discrimination therefore would be harder to vindicate, if people could with impunity ignore the structure established by the mediator.” Indeed, the court held, sanctioning a party “who by misconduct wrecks a mediation” will advance the goals of the anti-discrimination statute.
On a separate ground, the court noted that retaliation is unlawful only if it is intended to “dissuade a reasonable worker from making or supporting a charge of discrimination.” Sanctions for misconduct during a mediation would not dissuade someone from filing or pursuing a charge with the EEOC, and the fact of a mediation does not insulate a claimant from the consequences of behavior that, if it occurred outside the mediation, would warrant termination.
Concluded the Seventh Circuit, Title VII “does not create a privilege to misbehave in mediation.”
Moral of the story: When a mediator asks you to stay in a caucus room, stay there.
A few weeks ago I received an e-mail notice from LinkedIn saying that a friend had endorsed me in the field of Licensing. And the next day I got an endorsement as a Litigator.
Now, the closest I’ve ever been to a license is the back of my car. And I last litigated a case in 1998. (Did well, too, but…) However, this was a friend from my church group, a good man, and I am sure he thought he was doing a good deed, boosting me up, and doing a mitzvah according to his best lights. But at the ABA Annual Meeting a few weeks ago, I learned that he may have rendered me unethical!
Model Rule 7.1 provides that “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.” If we agree not to split hairs over whether a LinkedIn page that I created and that I maintain and whose content I control is my communication, then my LinkedIn page falsely conveys that I am a whiz-bang IP attorney. And the Florida Supreme Court recently opined that a lawyer must take down third-party comments that speak in terms of endorsements or that attest to skills.
Model Rule 7.3, regulating solicitation, notes in the Comment that “a lawyer’s communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches. ” So maybe my website is not a communication (huh?) and maybe neither is my LinkedIn page. But is this blog?
I mean, golly, I suppose I hope so….
The panelists at the ABA Meeting drew our attention to some precautionary judicial and ethical opinions.
- In Florida, for example, an attorney was disciplined for posting on her blog allegations that a judge she had appeared before was an “evil unfair witch,” “seemingly mentally ill,” and “clearly unfit for her position,” in violation of Florida Rule 4-8.2(a), prohibiting false statements about the qualifications of a judge.
- In Georgia, an attorney posted on the internet personal, confidential and identifiable information about a client in retaliation for a negative review that the client had posted on a consumer website, and was disciplined by the state Supreme Court.
- A Wisconsin attorney published a blog with information relating to her clients and derogatory comments about judges, and was suspended for 60 days. (A mitigating circumstance was that the client, in open court during trial, punched the attorney in the face, resulting in a concussion and other injuries.)
- Earlier this year, a divided Supreme Court of Virginia required that an attorney publish certain disclaimers to his blog, which contained “posts discussing a myriad of legal issues and cases, although the overwhelming majority are posts about cases in which [the attorney] obtained favorable results for his clients.”
The bottom line advice of the panel seemed to be: Check to see whether your jurisdiction prohibits or regulates testimonials. If it does, vacuum your LinkedIn site.
And if you maintain a blog, be honest and be nice. Now, is that so hard?
Readers of this blog know that the author has a warm place in his heart for the cottage industry of Monday-Morning Quarterback-ing mediated settlement agreements. These are the motions or newly initiated suits contesting whether one party to a mediation is actually bound by the terms of an agreement they made (or perhaps did not make) in mediation.
The grandpappy of them all was a New Jersey dispute in which the refusal by one party to honor an alleged mediated agreement was answered by a motion by the other party — accompanied by a certification of the mediator!! The trial court’s hearings, the Appellate Division’s consternation, the questions of breach of mediator confidentiality, the effectiveness of party waiver of mediator privilege — all these concerns and more stretched the litigation out (the mediation was conducted on November 6, 2007). I don’t remember reading that the attorneys refused their fees during the nearly 6 additional years of subsequent litigation. The case was described in a prior blog post, located here.
Well, on August 15, 2013, the New Jersey Supreme Court turned off the ventilator, not only on this suit but on the entire game. In a unanimous opinion, the court affirmed the trial court and the Appellate Division’s holding that the agreement reached at mediation was in fact binding and enforceable.
The court cited two exceptions to the privilege provisions in the Uniform Mediation Act (N.J.S.A. 2A:23C-2). One exception is that a writing signed at the mediation is admissible to prove the existence of that writing in an action to enforce it. The other is waiver — that a party that has clearly and unmistakably waived the privilege cannot thereafter seek to enforce it. Here a writing did not exist, but Willingboro’s failure to object to admission of the mediator’s certification — and its participation in deposing the mediator and questioning him in open hearing — deprived it of any basis to object.
The court then went a step beyond — a welcome one to those of us who understand mediation to be a reliable means of terminating litigation. It held that, going forward, if the parties to mediation reach an agreement to resolve their dispute, the terms of that settlement must be reduced to writing and signed by the parties before the mediation comes to a close in order for that agreement to bind the parties. ”To be clear, going forward, a settlement that is reached at mediation but not reduced to a signed written agreement will not be enforceable.”
Experienced mediators have known for years that best practices require the drafting of the essential terms of an agreement at the time of the mediation, on a piece of paper drafted by counsel (not the mediator), signed by the parties, and including the magic words: “While further documentation, releases, notices and agreements may follow, the parties intend to be bound by the terms above.” And now best practices have become law in the State of New Jersey.
Now, doesn’t that feel better?
Hanging around my notebook are musings and questions waiting for an iron to get hot enough to strike. Well, the iron hasn’t and it being August we might as well just lay them down there, unconnected but I hope not worthless.
1. The corporate people say that new ideas are hot and stale ones are not. Is it true that ADR is still as worthwhile as it ever was as a corporate practice, it’s just no longer “cutting edge” and so it’s hard to find a champion for it?
2. The course, they say, goes like this: Advocacy, then adoption, then success, then off-support. So today’s rooster becomes tomorrow’s feather-duster, by virtue of delivering what he promised. Is that the case with ADR?
3. Companies “get it” internally. Most companies of any size have a front-loaded employment dispute management system, and have learned that it’s cheaper to acknowledge and address employee problems early than to chase after them late. Why has this learning not migrated to relationships with critical partners outside the company?
4. Can you be a champion of an idea that is already familiar?
5. Successfully mediating a conclusion to a case at the end of the litigation-prep process is not a success.
6. Why is business-to-business ADR pushed most enthusiastically by vendors, rather than those who would benefit from it?
7. A hostage negotiation shared a mantra: “Respect the other party; trust the process. Not the other way around.” How often I have seen disputes where neither respect nor trust was evident — for anybody.
8. ”Civil discourse.” The concept seems to hinge on a willingness to listen and discuss views other than your own. But in many corners — both in public and in private discourse — there seems often to be no reason to assume that the other person’s view is worth anything other than to refute. And we didn’t invent this phenomenon — as long ago as 1650 Oliver Cromwell urged the Synod of the Church of Scotland, “in the bowels of Christ, think it possible you may be mistaken.” Arguers don’t; problem-solvers do.
7. Perhaps the best environment for civility is not a bilateral disagreement over whether A or B gets the money, but rather a multilateral disagreement over whether A’s river that irrigates B’s land can also be used to provide C with electricity without compromising the recreation that D needs for a living, knowing that if they can’t agree E will come in and regulate the whole thing.
8. We don’t need an open mike or a “town meeting.” We need people to consider other’s views on the (admittedly wildly improbable) possibility that their own may be… able to be improved.
My father taught me long ago that if you want to catch fish you need to put your hook where the fish are. That’s why I have devoted time to the ABA Business Law Section. It’s where the folks gather who can benefit from what commercial ADR has to offer.
At the ABA Annual Meeting in San Francisco next week, the Business Law Section will congregate up on Nob Hill at the Fairmont and Mark Hopkins hotels. It’s a tough assignment, but someone has to do it, so there I’ll be.
The Dispute Resolution Committee will be offering two CLE programs. The first will address the state of international negotiation, mediation and arbitration, in a program designed to assist transactional attorneys to paper cross-border deals in an informed manner, to protect the value of the deal in the event of cross-cultural disputes. Panelists will include American, Chinese and European attorneys with deep experience in negotiating and enforcing cross-border deals. It is at 2:30 pm Friday August 9 at the Pavilion Room of the Fairmont.
The second panel features Prof. Tom Stipanowich expounding on the recent Cornell/CPR/Pepperdine survey of Fortune 1000 companies, that unexpectedly concluded that take-up for mediation is increasing but that arbitration is disfavored by these companies. Other speakers include current and former corporate counsel for global pharmaceutical, aviation and IP companies, as well as counsel who advise them on dispute resolution provisions of their cross-border agreements. It will be in the Pavilion Room at 10:30 am on Saturday August 10.
The Dispute Resolution Committee of the Business Law Section is growing by leaps and bounds — 79% in the past 12 months alone. Section members can join the Committee for free. All — whether members or not — are welcome to attend its meeting on Saturday August 10 at 1:00 pm in the Vanderbilt Room of the Fairmont. Those who can’t attend in person are welcome to call in and monitor the session: (866) 646-6488, passcode 319-947-3460.
An interesting presentation on dispute prevention was featured at the recent UIA World Mediation Forum in Prague. The presenters demonstrated that project managers, not lawyers, may be the best equipped to save time and money by avoiding disputes.
Michel Nardin of PMG in Lausanne, Switzerland, discussed various techniques such as Partnering, Claims Appeal Committees, Early Expert Evaluation and Dispute Boards to reduce the occurrence and longevity of disputes in large infrastructure projects. The challenge is how to organize the contracts governing the work in such a way as to minimize the risk of interruption by disputes. The strategy adopted to confront this challenge is to identify and deal with problems at a very early stage, and thus to make early reporting of those issues and team engagement in their solutions more likely.
Nardin spent a good deal of time on the workings of Dispute Boards, which are 1-3 person bodies who know a project intimately and resolve disputes that arise as the project proceeds. An Adjudicate Board binds parties to a resolution; a Review Board makes recommendations. He considered the ICC Dispute Board Rules a welcome addition to the literature in the practice. Nardin also pointed to two illustrations of projects in which Dispute Boards were in place: The building of a city of 20,000 residents in Qatar, and an irrigation project in Mali. He underlined the fundamental point in the latter instance: the people were not interested in whose fault a problem was; they just wanted the water to be delivered.
Christopher Miers of London gave a presentation of a product of the group Resolex (www.Resolex.com) called “X-Tracking.” This is a software bundle that gathers perceptions of key individuals on the status of various aspects of a project, rather than technical facts, and creates weekly reports on how the team views the progress of the project. Feedback in these reports is both confidential and anonymous. The team itself agrees, at the start, on which members will provide information and which aspects of the project will be reported on. Comments are inputted remotely via the internet and summarized in a chart that shows problems that are perceived as “high risk” or “low risk,” as well as whether those risks are getting better or worse since the prior week. The chart also shows trends – whether a particular problem is getting riskier or getting more benign over the past several weeks. Armed with this subjective but highly revealing information, team managers can decide where to direct resources and how to make informal corrective decisions.
The tool is intriguing in many ways, not least because it is created for managers, using managerial data and managerial evaluations to prompt managerial decisions for better project outcomes. Compared to this process, the idea of taking dispute decisions away from managers (who are professionally benefited by corrective action) and toward lawyers (who are not) seems odd.