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5 advantages of SMART Resolve for commercial dispute resolution

by Matthew Rushton on 04 Sep 2017

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A critical challenge for any insurer is being able to identify and resist weak or unmeritorious claims while somehow retaining that client's hard-won business. Few relationships survive the litigation process, but for many it remains the default approach when negotiations reach a standstill. 

It needn't be so. The reality is that before pulling the trigger on litigation, judicious use of an impartial third party can bridge many gaps and fix many problems - while the parties retain control of their dispute. And this is where JAMS SMART Resolve comes in. If this sounds a lot like mediation, it isn't.

Mediation is about bringing parties together, usually face-to-face, at a point in time when the dispute is ripe for settlement. SMART Resolve is about working confidentially with all sides over a period of time to create the architecture of a settlement from when a dispute first emerges. 

Pilot studies demonstrate significant advantages in the SMART Resolve approach from boosting communication to narrowing conflict and accelerating resolution. In this post we explore 5 reasons why SMART Resolve could provide the best outcome for your dispute.

Significant savings through faster resolution

The benefits of mediation have long been recognised within the insurance industry, with roughly eight out of ten claims in mediation reaching settlement as a result of that process. However, mediation tends to chronologically follow expensive and protracted litigation, with "large" or "strategically important" disputes taking on average three years to reach settlement - whether ADR is deployed or not. 

In contrast, JAMS SMART Resolve quickly establishes the points in contention and builds a process to clarify the relevant facts and law. Rather than fighting blind, taking as many points as possible and stating each at their highest, SMART Resolve maintains perspective, narrows points in issue and steers parties towards the kill zone for a possible deal.  

The savings come in targeted disclosure, mutually agreed briefings for experts, and the sight of a deal rather than blind trawling for speculative advantage.  

Improved communication reduces acrimony

SMART Resolve shifts the ultimate goal away from the polarising effects of litigation and on to the shared goal of resolution. The role of the Resolver is to design a bespoke and efficient process that limits argument to relevant points, focuses on the merits of the issue and moderates unrealistic negotiating positions. The SMART Resolve process plays a pivotal role in shifting mind-sets, taking the heat out of the battle and focusing on bottom-lines rather than negotiating positions.

All communication is without prejudice, encouraging frank, constructive dialogue. The process is less about confronting an opponent, and more about using the Resolver to reframe and explore points in issue. The filter of a third party not only maintains momentum, but diminishes the effect of reactive devaluation.  

Greater control of the process

Throughout the SMART Resolve process, the dispute and its outcome remain in the hands of the parties. So rather than hiding behind lawyers and retreating into trenches, the parties are free to discuss and resolve in layman's terms what they believe to be the crucial issues. What's more, it encourages principalled negotiation via the Resolver rather then positional bargaining directly with the adversary.

Throughout the process the Resolver has a clear view of both sides' positions and is able to de-escalate conflict before issues become entrenched or polarised. In certain cases it isn't necessary for the adversaries to meet in person. The result is that the parties exercise real control: the issues needn't be defined in purely legalistic terms, and the outcome can be rejected if not mutually satisfactory.

A better deal for both parties

SMART Resolve focuses on a mutually agreement rather than a traditional "win-lose" scenario, meaning that any agreement is more likely to endure and less likely to be challenged.  The aim too is to reach a settlement that is mutually advantageous, in contrast to the binary "win-lose" outcome of litigation. Perhaps less immediately quantifiable - but just as important a part of the outcome - is the capacity for the insurer to sustain a positive and ongoing commercial relationship with the client. 

Confidence and confidentiality throughout

While legal advice may still be sought, SMART Resolve offers the opportunity for a shift in emphasis. From this vantage point the Resolver can isolate key points and narrow legal advice, document disclosure and provide input solely to where it offers greatest clarity. The resulting settlement is no less just or fair for having been achieved outside of the traditional adversarial system.  Indeed, over 90% of disputes result in settlement, so it makes sense to strive for the earliest possible resolution.

Ultimately too, all dialogue with the Resolver is confidential and without-prejudice to further proceedings, so if parties are unable to reach agreement for any reason then all options remain on the table. If litigation is unavoidable then that option is still available. Likewise mediation and arbitration may prove desirable and can proceed on ground already narrowed in the SMART Resolve process.

The SMART advantage

The introduction of an impartial third party charged with resolving a dispute is a significant differentiator in the commercial dispute resolution market. The adoption of SMART Resolve offers a practical and efficient means of managing conflict and makes a clear statement that the insurer is taking all possible steps to maintain relationships and deliver value.

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Topics: Insurance, Mediation

Matthew Rushton

Written by Matthew Rushton