Protocols

The EDR Process under the Protocols is simple to summarize. Counsel quickly obtain the information they need to evaluate a dispute, enabling them to confidently forecast the risk-adjusted value of a case and corresponding settlement ranges. Clients are then able to make informed decisions regarding the resolution of dispute.

The EDR Protocols

1. General Provisions

2. Ethics of the EDR Process

3. Step One - Initial Dispute Assessment

4. Step Two - Information and Document Exchange

5. Step Three – Risk Analysis

6. Step Four - Resolution

Overview of the EDR Process under the Protocols

Cases rarely go to trial or an arbitration hearing. Some are dismissed through motion practice; most others settle. But settlement often comes only after parties have expended considerable time and money on discovery and motion practice. Parties can often avoid these costs by using the EDR Process to reach settlement early, economically, and through principled negotiation. The EDR process involves undertaking an objective risk analysis that helps to quantify the monetary value of a case, while also considering subjective factors that may affect the parties’ settlement decisions.

Many of the perceived barriers to early settlement are circumvented by the EDR Process, which is simple to summarize. Counsel quickly and economically obtain the information they need to evaluate a dispute and use that information to forecast the Risk-Adjusted Value (Protocol 5.2) of a case and determine potential settlement ranges. Clients are then able to make informed decisions regarding resolution of the dispute.

The EDR Process has four steps: (i) initial dispute assessment, (ii) information and document exchange, (iii) risk analysis, and (iv) resolution. The Protocols provide guidance for each step and establish ethical standards to ensure the integrity of the process and increase the likelihood that the dispute will be resolved. The EDR Process is flexible; parties can adapt it to their particular dispute.

The EDR Process works best when facilitated by a trained neutral with a comprehensive understanding of the concepts, skills, ethical standards and four steps laid out in the Protocols and their practical application. The neutral can help parties tailor the EDR Process to their dispute, execute each step, stay on schedule, and avoid impasse.

The Institute first published the Protocols in 2019. Since then, neutrals, judges, counsel, and parties have been using the EDR Process to resolve disputes. Based on their feedback, the Institute periodically updates the Protocols to reflect best practices.

The EDR Protocols

1. General Provisions

1.1 EDR is a Process

Dispute resolution under the Protocols is a four-step process, not an event measured in a set number of hours or days. It is designed to address resolution in the earliest stages of the dispute. As soon as practicable after the parties have agreed to engage in the EDR Process and retained a neutral trained in the Protocols (“EDR Neutral”), the neutral should schedule a call with counsel to determine how they will proceed and set deadlines for completing each step. Although the schedule will depend on the complexity of the dispute, it should generally be completed within 30 days.

Following that call, the EDR Neutral will move the parties through the four steps, communicating virtually with the parties in sequential separate or joint caucuses as appropriate. Generally, after the initial call, both clients and counsel should participate in these communications as the process is intended to give clients the information they need to make informed settlement decisions. If the parties have not resolved their dispute by the end of Step Four, the EDR Neutral will conduct a Backstop Mediation Session.

1.2 Flexible Application

The Protocols define the steps, processes, concepts, skills, and ethical standards to guide counsel and parties in seeking early resolution of their dispute. They may serve as either general guidelines or formal rules for the EDR process. They are flexible and can be varied to best serve the goal of early, economical, and principled resolution of the dispute. The EDR Neutral should work with the parties to simplify the process to the extent appropriate to the dispute and to make it as efficient as possible.

1.3 The Four Steps

The EDR Process has four steps:

  • (a) Initial Dispute Assessment
  • (b) Information and Document Exchange (including use of EDR Experts, if appropriate)
  • (c) Risk Analysis
  • (d) Resolution

1.4 The EDR Neutral

The EDR Process works best when the parties retain an EDR Neutral to facilitate the EDR Process.

1.5 The EDR Agreement

The parties should document in an agreement (“EDR Agreement”) the terms and schedule that will apply as they proceed through the EDR Process. The EDR Agreement may be in the form of the EDR Neutral’s retention letter, a dispute resolution clause in a contract, or a stand-alone agreement.

1.6 Confidentiality

To ensure that the EDR Process is subject to state statutes that provide for the confidentiality of mediation, parties should consider stating in the EDR Agreement that they intend for the statutes to apply.

2. Ethics of the EDR Process

2.1 The Protocols and Professional Rules of Conduct

Counsel are subject to the rules of professional conduct in their respective jurisdictions during the EDR Process. Counsel and parties shall also comply with the following ethical standards throughout the EDR Process:

    (a) Counsel should fully explain the EDR Process to their clients to allow clients to make an informed decision on whether to use the process.
    (b) The parties and counsel should seek in good faith to resolve the dispute early, economically, and on a principled basis.
    (c) Throughout the process, counsel should provide their clients with the relevant information they need to make informed decisions as to resolution.
    (d) Throughout the process, counsel should act with integrity and treat the other party’s counsel with the highest level of professionalism and civility.

2.2 Permissive and Mandatory Withdrawal by the Parties

A party may withdraw from the EDR Process at any time, for any reason. A party must withdraw if it cannot continue the process in compliance with the Protocols’ ethical standards or the EDR Agreement.

2.3 Permissive and Mandatory Withdrawal by the EDR Neutral

The EDR Neutral may withdraw from the EDR Process at any time for any reason. If the neutral becomes aware that a party is not compliant with the Protocols’ ethical standards or the parties’ EDR Agreement, the neutral must provide notice of the noncompliance to the noncompliant party ex parte. If that party does not timely cure the noncompliance, the neutral must withdraw, but shall not provide an explanation for the withdrawal.

2.4 Client Self-Determination

The AAA/ABA Model Standards of Conduct for Mediators provide that “a mediator shall conduct a mediation based on the principle of party self-determination.” The EDR Process reflects this by having clients participate throughout the process with their counsel and by requiring that counsel provide clients with Sufficient Information to make informed settlement decisions.

3. Step One - Initial Dispute Assessment

3.1 Rationale

Step One provides the process for the parties, with the assistance of the EDR Neutral, to develop an objective understanding of the case, and to simplify the case to its core claims, defenses, and factual and legal issues. Step One is the foundation for each party’s Sufficient Information Request, Risk Analysis, and Principled Negotiation, detailed in Steps Two, Three, and Four, respectively.

3.2 Provide EDR Neutral with Settlement Communications, Pleadings, Key Documents

After the EDR Neutral is engaged, counsel should send the EDR Neutral settlement letters and e-mails, pleadings (if the case has been filed), and key documents. Traditional mediation statements are typically not necessary in the EDR Process; they require the parties to spend time and money, reflect biases, and reinforce positional, not probabilistic, thinking. The EDR Neutral may, however, ask counsel to address specific issues in writing.

3.3 Thoroughly Understand the Material Facts and Issues of the Case

For the EDR Process to move forward expeditiously, counsel should have a thorough understanding of the material facts and issues of the case. With this, counsel can simplify the claims and defenses and the factual and legal issues in dispute for purposes of the EDR Process, and can determine whether they need additional information or documents in Step Two to develop Sufficient Information (Pr. 4.2).

3.4 Simplify Case to Core Claims and Dispositive Legal and Factual Issues

The EDR Neutral should work with counsel to reach a consensus on the core claims and defenses and dispositive legal and factual issues, simplifying the case for purposes of the EDR Process. The goal is to distill the case down to what resolution of the dispute really hinges on, which then allows counsel to narrow their Sufficient Information Requests (if any) (Pr. 4.3) and engage in properly framed Risk Analysis.

4. Step Two - Information and Document Exchange

4.1 Rationale

In Step Two, the parties may request from each other a narrow set of information and documents, if any, that will allow each party’s counsel to develop Sufficient Information. Given that the information and documents would almost certainly be discoverable in a court case or arbitration, neither party is prejudiced by providing the information in the early stages of the dispute, particularly when the parties need the information to make an informed Risk Analysis of their case.

4.2 Sufficient Information - Counsel, Clients, and Experts

Sufficient Information refers, respectively, to the limited set of information that:

    (a) Counsel need to make an informed forecast of the Risk-Adjusted Value (Pr. 5.2) and reasonable settlement range for the case;
    (b) Clients need to make informed decisions as to resolution of the case; and
    (c) Experts (if used) need to render an EDR Expert Report (Pr. 4.8.3).

4.3 Request Information/Documents Needed to Develop Sufficient Information

Each party should identify the limited information or documents, if any, it needs from the other side to develop Sufficient Information, which it may request in a Sufficient Information Request. This is not discovery as practiced in state or federal courts. The EDR Neutral should help each party frame its requests narrowly, facilitate resolution of any disagreements related to the requests, and minimize the burden on the producing party, while ensuring that each party receives the information and documents it reasonably needs to develop Sufficient Information.

4.4 Construe Sufficient Information Requests Broadly

In determining whether documents are responsive to a Sufficient Information Request, the responding party should construe the requests broadly and provide the information or documents that the requesting party would consider reasonably covered by the request. Requests should not be parsed to limit or avoid providing what the other party is seeking, nor should a party make a voluminous production in an effort to bury the requested information. Responsive documents that are unfavorable to a party must be produced.

4.5 Subsequent Requests

If needed to develop Sufficient Information, the parties may make additional Sufficient Information Requests, facilitated by the EDR Neutral.

4.6 Questioning the Other Side’s Witnesses

4.6.1 Limited Use

If needed to develop Sufficient Information, counsel may ask to interview witnesses under the opposing parties’ control. These interviews may be on or off the record, as agreed by the parties. Since the EDR Process is confidential as a form of alternative dispute resolution, the default should be “off the record.” The number of interviews and the questions to the witnesses should be narrowly tailored to what is needed for counsel to develop Sufficient Information. The process should be used sparingly; these are not depositions.

4.6.2 Procedure

Parties should agree on a procedure that seeks to elicit information fairly, which may include having the EDR Neutral ask questions that counsel provide. Parties should encourage their witness(es) to answer questions responsively and not to parse questions in a way that would hold back relevant information or render a response misleading.

4.7 Verification of Compliant Response

A requesting party may ask the responding party and its counsel to declare in writing that the responding party has made a Compliant Response to the requesting party’s Sufficient Information Request, which means that:

    (a) The responding party has made a diligent, good-faith search of reasonable scope for what was requested, and has produced the responsive information and documents that resulted from the search;
    (b) The responding party has not narrowly construed requests for information or documents to withhold responsive information or documents; and
    (c) Witnesses under the responding party’s control were forthcoming and accurately answered questions.

If the parties resolve their dispute through the EDR Process, the settlement agreement could include a material representation from each producing party that it made a Compliant Response to the other party’s Sufficient Information Request.

4.8 EDR Experts

4.8.1 Experts Discouraged

Experts should be used in the EDR Process (“EDR Experts”) only when needed by counsel to develop Sufficient Information. The use of EDR Experts is discouraged; they add significant cost and time and, in many cases, add little value. Their opinions often contradict each other and contain information and conclusions already known to the parties. If one or more of the parties does need to retain an EDR Expert, the expert’s work should be limited to preparing an EDR Expert Report.

4.8.2 EDR Expert Sufficient Information Exchange

If an expert is retained, counsel may request from the other side the limited information or documents, if any, that the expert needs to issue an EDR Expert Report. Counsel should cooperate in providing the necessary information to each other, facilitated by the EDR Neutral.

4.8.3 EDR Expert Report

The EDR Expert’s report should be limited to a concise statement of the expert’s qualifications, opinions and key findings (“EDR Expert Report”). Unless the parties otherwise agree, they may not use the EDR Expert Report in subsequent or already pending litigation or arbitration.

4.8.4 Joint Experts

The parties may jointly retain an EDR Expert to issue an EDR Expert Report. The written agreement to retain the joint EDR Expert should address guidelines for (i) communications between the expert, on the one hand, and one or more of the parties’ counsel, on the other, and (ii) access to the expert’s work product. Unless the parties otherwise agree, parties may not use the joint EDR Expert Report in subsequent or already pending litigation or arbitration.

4.9 Simplified Process Combining Steps One and Two

In the initial call with counsel, the EDR Neutral may suggest an abbreviated process that combines Steps One and Two. At that point, counsel can narrow the issues, agree on the documents and information to be exchanged, if any, and decide whether experts are needed.

5. Step Three - Risk Analysis

5.1 Rationale

At this point, the parties should have reached agreement on the core claims, defenses, and legal and factual issues, and should have developed Sufficient Information. Working with the EDR Neutral, each counsel in Step Three undertakes a Risk Analysis of its case, which leads to a recommendation to the client of a Reasonable Settlement Range that considers the Risk-Adjusted Value and subjective risk factors. This creates a common framework for the parties to engage in Principled Negotiation.

The EDR Process is based on the premise that skilled lawyers with Sufficient Information can forecast the Risk-Adjusted Value of a case early, with a level of confidence similar to the confidence level they would have after conducting full discovery and engaging in motion practice.

5.2 Risk-Adjusted Value

Risk-Adjusted Value is determined using probability logic to forecast the dollar value of a case. The formula is the weighted average of the likely recoverable damage amounts discounted by the likelihood of their being awarded, with future attorneys’ fees and costs then subtracted. Decision trees can be helpful in calculating Risk-Adjusted Value, and in explaining the probable risks and rewards to clients.

5.3 Forecasting the Risk-Adjusted Value Variables

To calculate the Risk-Adjusted Value of a client’s case, each counsel forecasts three variables (“Variables”):

    (a) The party’s percentage likelihood of prevailing on each of the material claims or defenses;
    (b) The party’s likely range of damages as to each material claim (often using three alternatives—low, medium, and high), and the percentage likelihood of recovering each amount within that range; and
    (c) The estimated future costs and attorney’s fees to pursue litigation or arbitration through final judgment or award. Where warranted, counsel should also forecast expenses and fees through appeal or award confirmation, discounted by the likelihood that neither party would seek appeal or confirmation.

5.4 Role of the EDR Neutral

The EDR Neutral should be skilled in using counsel’s forecasts of the Variables to calculate Risk-Adjusted Values, and can assist counsel and clients with forecasting, probability logic, and the actual calculation of Risk-Adjusted Value. Each party’s Risk-Adjusted Value calculations are confidential.

5.5 Subjective Risk Factors

Counsel should also modify the Risk-Adjusted Value, if appropriate, to reflect subjective risk factors that influence a client’s settlement decisions. These include each client’s risk tolerance, leverage, potential collectability issues of a judgment or award, and the personal and business impact of continuing the dispute.

5.6 Reasonable Settlement Range

Based on the Risk-Adjusted Value and evaluation of subjective risk factors, each counsel should recommend to their clients a reasonable range within which to settle the dispute. As appropriate, non-monetary settlement options should also be explored. Counsel should explain to their clients the Variables and reasons supporting the settlement range so that the client has Sufficient Information to make informed decisions when negotiating settlement. Counsel should adjust the recommended reasonable settlement range, when appropriate, if additional information learned during the process changes initial assumptions.

6. Step Four - Resolution

6.1 Rationale

Having obtained Sufficient Information and prepared their Risk Analyses, the parties can engage in Principled Negotiation with the goal of reaching a mutually acceptable resolution that realistically reflects the risks and rewards each party faces. The EDR Process has established the foundation for Principled Negotiation, which can be contrasted with negotiations in which the parties engage in positional bargaining, untethered to a realistic assessment of the case’s likely outcome.

6.2 Principled Negotiation

Based on their respective Risk Analyses, each party should be prepared to engage in Principled Negotiation by objectively discussing their positions on Risk-Adjusted Value and their assessment of subjective risk factors. The EDR Neutral should facilitate Principled Negotiation through sequential caucusing to help the parties resolve the dispute.

6.3 Backstop Mediation Session

If the parties have not resolved the dispute through Principled Negotiation, the EDR Neutral should hold a Backstop Mediation Session. The EDR Neutral should facilitate the session consistent with standard practice for mediation, provided that the parties continue to negotiate on a principled basis.

6.4 Binding Decision, Procedure Absent Final Resolution

If the parties do not resolve the dispute before or at the Backstop Mediation Session, the parties through the EDR Process should have substantially narrowed the issues and reduced the discovery needed for arbitration or trial. As a result, the parties, with the EDR Neutral’s assistance, should consider agreeing to an expedited, economical, and binding process that they will follow in court or arbitration.

Likewise, if in the proceeding steps, the parties decide that they need a binding decision on a factual or legal issue before further pursuing the EDR Process, they may, with the EDR Neutral’s assistance, structure an expedited, cost-effective process to obtain that decision through arbitration or in court, and then return to the EDR Process.

If all parties consent and the rules of any administrative body involved in the dispute allow, the parties may ask the EDR Neutral to serve as the arbitrator. Before agreeing to serve as the arbitrator, however, the EDR Neutral must be confident he or she can serve effectively in such a role and can comply with any applicable ethical requirements.

© EDR Institute 2019-2025