Settlement Counsel and Early Dispute Resolution Background

Special counsel for special situations

 The Big Picture: Today nearly all experienced trial attorneys, as well as their clients, appreciate the importance of early dispute resolution (EDR). That said, and despite the many articles, protocols and advisories on early resolution, the execution of this basic concept has, for the most part, remained undefined.

The Inflection Point:  We are pleased to report the embracing of early resolution on several fronts. There are many avenues available to pursue early resolution – and the tools-of-the-trade can be deployed by most anyone.  The customary two-hat litigation attorney model can and does work (trial counsel switching hats from the threatening trial attorney to peacemaker when the time is right); for more difficult matters settlement counsel offers a focused, specialized resource; and, of course, if offered the opportunity, mediators can be in a unique position to make use of the tools to foster early resolutions.[1]

The Evolution of Resolutionaries:  The history of early resolution involves over 40 years of writings, developed protocols and other efforts to bring resolution options to the legal services industry. We see these pioneers as “Resolutionaries” – advocated for faster, cheaper, more timely resolutions.

While in the past early resolution and its advocates may have been perceived as disruptive innovations to much of the established legal community, this is quickly dissolving as clients and attorneys alike have come to appreciate that early resolution is not a threat – but a fulfillment of our professional charge. Following are background references we offer up for those interested in the history and recent developments.


Early Resolution Origins:  Something old is new again. We give credit to Roger Fisher of the Harvard Negotiation Project for elevating the modern-day initiative for early resolution.  In his seminal 1983 article, What about Negotiation as a Specialty, he made the case – a very persuasive, yet disruptive, case – emphasizing that the trial attorney is not always the optimum resource for timely, effective resolution. His foundational articles, and a few other early works, can be found here.  Subsequent works can be found here.

Organized ECA/EDR Protocols and Associations:  Years ago, many companies came to appreciate the value of early resolution of claims and disputes and several created model programs in-house that proved very successful. Eventually, efforts to define a repeatable methodology were undertaken by various legal services organizations[2] – including CPR  and the ABA.  Most recently, the EDR Institute and the AAA have risen to the forefront with a comprehensive methodology for mediation-related early resolution.

Settlement Counsel:  While the idea of a specialized settlement resource was daylighted by Roger Fisher years earlier, the first stand-alone settlement counsel law firm arrived in 2001 with the formation of Resolution Counsel LLP – a law firm of three attorneys who only served as settlement counsel for their clients. A search of “settlement counsel” today will reveal a number of attorneys and mediators offering settlement counsel services to their firms offerings. In 2008, Resolution Counsel partners formed Resolution Strategies LLP to continue to the focus on the role of settlement counsel and forging resolutions in cases “that couldn’t be settled.”  Our approach and related materials are here.

[1] This, of course, requires “early mediation” as opposed to mediation delayed until litigation has run its course.
[2] Resolution Counsel/Resolution Strategies rolled out its Aggressive Resolution Management methodology in 2003.