ECONOMICAL LITIGATION AGREEMENT UNVEILED BY
DUANE MORRIS’ DANIEL WINSLOW AND CPR INSTITUTE
-- New model contractual agreement that companies can use to limit litigation costs--
NEW YORK, BOSTON-- April 19, 2010 – Daniel Winslow, a Boston partner and litigator at international law firm Duane Morris LLP, and The International Institute for Conflict Prevention & Resolution (CPR Institute), a nonprofit think-tank and alliance of global corporations, law firms, scholars, and public institutions, are pleased to announce the rollout of a pilot program for the CPR Institute’s first model Economical Litigation Agreement (ELA).
A means of containing civil litigation costs, ELA is a hybrid of civil litigation and arbitration, whereby parties agree to use standard, limited-scope discovery procedures in lieu of conventional discovery. Ideally, companies would incorporate the model agreement into contracts with partners, suppliers and customers at the start of a business relationship.
Colloquially known as a "litigation prenup," the model agreement includes a mandatory pre-litigation dispute resolution section, which includes a clause calling for executives to negotiate directly with one another.
The model agreement was fine-tuned over the past year by an informal focus group of in-house attorneys from Abbott Laboratories, Bechtel Group Inc., Cisco Systems Inc., General Electric Co. and Microsoft Corp. and others One of the agreement’s major innovations is the use of an arbitrator to enforce a discovery contract.
"CPR’s model ELA allows the parties to have a judge decide a case on its merits, but the process is shaped by the parties and enforced by an arbitrator through binding arbitration", said Duane Morris’ Winslow.
Kathleen Bryan, president and chief executive officer of the CPR Institute said, ”This model agreement is essentially a series of default provisions based on what the CPR Institute has learned over the past 30 years of bringing together business leaders and their counsel to define best practices in commercial conflict management. It is a direct response to our member companies’ need for more control over the pretrial process."
The ELA enjoys support from David Burt, a corporate counsel at I.E. du Pont de Nemours and Co. and a member of the CPR Institute's executive advisory committee. "Although many companies have agreements to arbitrate or mediate disputes or for senior executives to negotiate before going to court, the economical litigation agreement is a new idea," Burt said. "I foresee that it will be built into agreements once it is ready."
The model ELA debuted on April 15 at "American Justice at a Crossroads: A Public & Private Crisis," a conference co-sponsored by Pepperdine's Straus Institute for Dispute Resolution and the CPR Institute in Malibu, California.
NOTE: The ELA is a pilot program which is currently in the review stage. If you would like to be included on the mailing list to receive the final version (which will be posted online and available for incorporation by reference in parties’ contracts) as soon as the focus group completes its review/tweaks, please contact CPR.