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In-House Question of the Week: How Do You Make Frivolous Plaintiffs Go Away without Litigation?

By Victoria Pynchon

This is, of course, the $64 million dollar question.  Or the $640 million dollar conundrum.  Or the $6.4 billion dollar SNAFU.

Abandon all hope . . . .

Not really.

The answer is:  make a checklist and follow it!

Atul Gawande's Checklist Manifesto - How to Get Things Right is not about ordinary lists - those "to do's" we never get around to; the recipe for gramma's extra fudgey brownies; or, even the T-minus rocket launch count-down lists (forcing functions) which my friend the astral-orbital engineer has been holding his breath through this week (his satellite is about to be thrown up into orbit; last night the T-minus rocket count stopped six seconds to launch!)

I'm talking about communication check-lists of the sort used by our friends in the sky-scraper business - the ones that have achieved this jaw-dropping "annual avoidable failure rate": 

0.00002 percent.

What kind of check-list does that?  In the construction industry, it's a "submittal schedule."  Gawande explains that a submittal schedule is also a checklist,

but it [doesn't] specify construction tasks; it specif[ies] communication tasks.  For the way the project managers dealt with the unexpected and the uncertain was by making sure the experts spoke to one another - on X date regarding Y process.

The assumption of the submittal schedule is that "if you got the right people together and had them take a moment to talk things over as a team rather than as individuals, serious problems could be identified and averted."

It turns out that checklists work as well for physicians dealing with routine but complex collisions between genetics and circumstance as they do for contractors and jet pilots. Checklists, it turns out, can solve problems like raising a child . . . . or resolving disputes. 

Can Gawande's "communication checklists" be good news for in-house counsel trying to prevent litigation? 

Yes they can.  And they already exist.  Dispute resolution techniques are scalable -- the procedure described can be used for fights over shared lockers equally well as conflicts over shared political boundaries.  Scalability means that the system for solving the small problem can also be used to solve the big one by "adding new functionality at minimal effort."

Here's the Peer Mediation Checklist used by the Western Justice Center for Middle Schoolers.  I've coached these young people and they are master dispute resolvers.  After a Peer Mediation Competition, you want to send these kids to the middle east.

The even better news for in-house counsel is the fact that you do not need a "mediator" to follow this list.  You do need enhancements, however, to take you from the fight over a shared school locker to the lawyer threatening to sue your company for defamation or products liability or antitrust violations or securities fraud. 

Enhancements tomorrow. 

The Middle School Checklist today.

STEP I: SETTING THE STAGE: INTRODUCTION AND GROUND RULES

Mediators: introduce themselves; explain the process of mediation and that it is voluntary; explain   that mediators are neutral; explain confidentiality; establish a safe and comfortable environment; and, get agreement on the following ground rules:

1. Don't interrupt.
2. No name-calling or put-downs.
3. Agree to solve the problem.
4. Be honest.
5. Show respect.
6. Be willing to listen.

STEP II: DEFINING THE PROBLEM

Mediators: Ask who will talk first;  ask what happened; ask how he or she feels about what happened;  summarize each statement; and, give each party approximately equal time to talk.

STEP III: IDENTIFYING THE ISSUES

Mediators: Use active listening skills (repeating, summarizing, clarifying); create an agenda; focus on issues important to both parties; stay neutral; ask if any issues have been missed; and, identify areas of miscommunication or wrong assumptions.

STEP IV: FINDING SOLUTIONS

Mediators:  Address issues one at a time; brainstorm solutions; ask what each party would like the other to do differently in the future; ask what each party can do to resolve the dispute; and, ask what can be done differently if the problem occurs again.

STEP V: AGREEMENT AND CLOSING

Mediators: •    Write specific agreements for each issue outlining who will do what,
where, how and by what date; balance the agreement so both parties take responsibility for the solution; be sure the agreement is realistic for each party; be sure the agreement really addresses the issues; ask if any issues have been missed; ask parties to prevent rumors by telling people the dispute is resolved; and, thank the parties and congratulate them for their hard work.

 

 

1. Pick up the telephone and ask to talk to the frivolous plaintiff or the frivolous plaintiff's attorney.
2. If either one is local, suggest a face-to-face meeting or telephone call between the claimant (and his attorney if he has one) and one or more corporate representatives, including the person or persons with percipient knowledge of the event or series of the events giving rise to the claim and
   
   1.  
   2. ask the attorney or claimant a series of open-ended diagnostic questions calculated to ascertain the following:
      1. what happened (even if you believe you already know)
      2. who was involved in the event that gave rise to the claim
      3. what was it about the event that makes the claimant (or his attorney) believe an an injustice occurred (don't limit yourself to "actionable" injustices, remembering that a frivolous claim is simply an injury-causing event for which the law does not provide a remedy)
      4. what remedy is the claimant seeking and why does the claimant believe a legal remedy is appropriate to the circumstances giving rise to the claimed injury. 
   3. 1.  

Full post as published by Settle It Now Negotiation Blog on May 24, 2010 (boomark / email).