Executive Guide to Managing Disputes Executive Guide to Managing Disputes:
Using ADR to Save Time and expense in Business, Healthcare, and the Workplace

By Gary Kaplan
1587982986 - $49.95

Publisher Comments

Categories: Law

This title is part of the Smart Management list.

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Drawing upon more than 25 years experience as a business lawyer, arbitrator, and mediator, Gary Kaplan not only explains why litigation is so costly, but also how to manage disputes sensibly to avoid unnecessary litigation, reduce costs, and improve results.

The Executive Guide draws from the latest scientific research and economic theory to explain, contrary to popular sentiment, that the high cost of litigation is systemic, rather than the fault of supposedly greedy lawyers. Indeed, litigation is a perfect storm of circumstances that leads to bad decisions about when and if to settle business disputes and why it is such an inefficient process for obtaining decisions and resolving claims.

The Executive Guide shows how ADR (i.e., Alternative Dispute Resolution), such as mediation and arbitration, can short-cut disputes, and how to use often inexpensive dispute management programs to contain costs and achieve favorable outcomes that focus on cultivating positive business, workplace, and healthcare relationships.

For More Information CLICK HERE

CLICK HERE to listen to a podcast by the author discussing Alternative Dispute Resolution.

“Kaplan’s Executive Guide unravels the mysteries, complexities, and absurdities of modern litigation and its alternatives with penetrating insight, fine judgment, and common sense.”
—Douglas G. Baird, Harry A. Bigelow Distinguished Service Professor of Law, The University of Chicago Law School

“Provocative and well-written, Gary Kaplan’s book offers lawyers and business executives a new framework for considering and addressing costly disputes. Although litigation is sometimes necessary, the Executive Guide persuasively shows the importance of planning for potential lawsuits and using proven ADR processes to manage and contain their impact.”
—Judith Harris, Esq., Partner, Reed Smith, LLP

“As one who had a strong case, but unrealistic expectations as to time and monetary cost of litigation, I encourage every executive, business owner, and healthcare provider to read Gary Kaplan’s Executive Guide to Managing Disputes. As Mr. Kaplan persuasively explains, the high cost in time and money and uncertainty of litigation makes it a dubious and stressful undertaking, even for the strongest cases. In view of this problem, Gary Kaplan's book, in a sensible and compelling manner, encourages business and healthcare professionals to plan for disputes rather than unrealistically hope that none will arise. By using Gary Kaplan's ADR guide, one can safeguard against costly, time consuming, and wasteful litigation.”
—David Gilliand, President, Geodax Technology, Inc.

Gary L. Kaplan is attorney with more than 25 years experience in commercial litigation, business transactions, and dispute resolution. Mr. Kaplan serves as an arbitrator and mediator for the American Arbitration Association, the American Health Lawyers Association, the National Arbitration Forum, the CPR Institute and the United States District Court of the Western District of Pennsylvania. Mr. Kaplan received his B.A., summa cum laude, with distinction in economics from Yale University (1980) and his J.D. from the University of Chicago Law School (1983).

Mr. Kaplan is a Partner in the Pittsburgh firm of DeForest Koscelnik Yokitis Kaplan & Berardinelli and he teaches as a Professorial Lecturer in Law at The George Washington University Law School in Washington, D.C. From 1991 through 2003, Mr. Kaplan practiced at Reed Smith, LLP, which he joined after serving as the Director of the Trade Remedy Assistance Office of the U.S. International Trade Commission in Washington D.C. and after practicing in Los Angeles with the law firm of O’Melveny & Myers.

Mr. Kaplan's legal practice focuses on information technology (“IT”), intellectual property licensing, e-commerce, antitrust, competition law, and commercial litigation. He is a member of the state bars of Pennsylvania, District of Columbia, California, Ohio, and West Virginia, and he serves as Chairman of the Legislation and Class Actions subcommittee of the American Bar Association's Arbitration Committee.

Foreword 9
About the Author 11
CHAPTER ONE: The Executive’s Guide to Litigation:
What to Expect and Why Even Winners Lose
The Anatomy of a Lawsuit  13
Investigation and Pleadings 13
Preliminary Conference and Scheduling 15
Discovery 16
Expert Discovery 19
Pretrial Motions 20
Trial Preparation 21
Jury Selection 22
Trial 23
Post-Trial and Appeals 25
CHAPTER TWO: Chapter II: The Persistence of Irrational Lawsuits  26
The Honeymoon: In Love with Your Case 26
Self-Serving Bias: Confusing Fairness with Self-Interest 27
Confirmation Bias: Seeing What We Want to See 29
Availability: “What We Don’t Know (or Understand) Can’t Hurt Us” 33
Attribution Error: Assuming the Worst of the Opposition 34
Overconfidence, Undue Optimism and Illusions of Control 34
Conflicting Risk Profiles 37
Married to Your Case with No Way Out 38
Conclusion 40
CHAPTER THREE: The Litigation Problem: An Inefficient Process for Deciding Disputes  41
The Characteristics of Efficient Dispute Resolution  42
Wasteful Redundancy 44
The Invisible Hand Gone Awry: Incentives That Promote Inefficiency 45
Passive Decision Makers 53
Uncertainty as an Impediment to Settlement 55
Conclusion 56
CHAPTER FOUR: An Overview of Dispute Resolution Alternatives 58
Negotiation Before Litigation 58
Negotiation During Litigation 59
Mediation 60
Arbitration 63
Dispute Management and Avoidance 63
CHAPTER FIVE: Why Mediation Can Often Resolve Disputes More Effectively than Direct Negotiation 66
An Economic Model for Settlement of Commercial Disputes 67
Interest-Based Approaches to Healthcare and Workplace Disputes 68
Information Risks 70
Reactive Devaluation 70
Agency Problems and Intraparty Conflicts 71
Overcoming Distrust 73
Reality Checking and Case Valuation 74
CHAPTER SIX: Arbitration: A Potentially Efficient Alternative 76
Background 76
An Overview of Business Arbitration 77
Efficiency Risks of Arbitration 79
Efficient Options for Arbitration 81
Advance Selection of an Efficient Arbitrator 82
Cost-Saving Procedural Rules 82
Prohibiting Prehearing Depositions 83
Prohibit and/or Limit Prehearing Motions 83
Set Time Limits for Completion of the Arbitration 84
Conclusion 84
CHAPTER SEVEN: Models for Efficient Resolution of Business Disputes: Investigatory Mediation and Arbitration and Co-Expert Mediation 85
Investigatory Mediation and Arbitration 85
Co-Expert Mediation 90
CHAPTER EIGHT: Dispute Containment and Management of Project Disputes 92
Managing Potential Disputes with Effective Contracts 93
Managing Disputes as They Arise 93
Management of Project Disputes 94
CHAPTER NINE:Dispute Management Systems: Case Studies and Cost Savings 97
Comprehensive Dispute Management 98
Commercial and Product Liability Disputes 104
Workplace Dispute Systems 107
Healthcare Dispute Systems 114
Case Study Conclusions 118
CHAPTER TEN: Development and Implementation of Dispute Management Systems 120
Impediments to the Adoption of ADR 120
Successful Dispute Management and Paradigm Change 122
Dispute Management Systems for Healthcare and Business Relationships 126
Dispute Management Systems for the Workplace 127
System Design Phase I: Project Requirements and Scope 129
System Design Phase II: Project Architecture 131
System Design Phase III: Build Out 132
System Design Phase IV: Testing, Refinement, and Implementation 133
System Design Phase V: Monitoring, Assessment, and Improvement 133
CHAPTER ELEVEN: The Future: Online Dispute Resolution and Virtual Sessions 135
Automated Negotiation Systems 137
Facilitated Negotiation Systems 138
Online Arbitration 138
Online Mediation 139
The Future: ADR in Virtual Worlds 140
ADR in Virtual Sessions 144
CHAPTER TWELVE: Conclusion 148
Works Cited 150

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