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My new article on EVALOA to promote settlements in arbitration

Just published in the ABA Dispute Resolution Section’s E-News: my article “EVALOA [evaluation plus last-offer arbitration]: A better way to facilitate settlements in arbitration.”

Here’s the TL;DR (too long; didn’t read):

  • Non-binding mediation, in which a mediator tries to help litigants to reach a settlement agreement, is expensive; it can often be ineffectual if one party or another won’t budge far from its position.
  • Another approach (assuming the parties so agree) is to stick with binding arbitration — but early in the case, have the arbitrator carefully give the parties her tentative, provisional views about the case, based on whatever information the parties have provided.  (This is like early neutral evaluation and mini-trials.)  That alone can help encourage implacably-stubborn parties to reconsider their views.
  • If the arbitrator’s early views don’t result in settlement, then the parties can agree to do “baseball” arbitration, in which:
    • Each party submits one or more proposed outcomes of the case;
    • The arbitrator’s sole power is to pick the party proposal that is the closest to how the arbitrator herself would decide the case.  This gives each party a powerful motivation to be reasonable, because otherwise the arbitrator might pick the other side’s proposal.  (That’s why baseball arbitration has an excellent track record of getting baseball teams and players to settle salary disputes.)

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