SETTLED! The Revolution in Online Dispute Resolution. By Charles Brofman. Settled! The Revolution in Online Dispute Resolution Draft 6 10/10/2007

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1 SETTLED! The Revolution in Online Dispute Resolution By Charles Brofman The Lexicomm Group 0 1

2 Dedication To Ariel and Sean You are limited only by the boundaries of your imaginations. Love, Dad The Lexicomm Group 0 2

3 Chapter 0 - Introduction 97.66% of claims cases settle before they ever get to court. Sounds great, right? The problem is many of these cases take months, and often years, to reach that point. That hurts the plaintiffs the injured parties. But it also costs their attorneys and the insurance companies as well. That s where we come in. At Cybersettle, we re leading a revolution in dispute resolution. Through leveraging the power of the Internet, we re changing how companies, consumers and municipalities settle their conflicts. It s a progressive product that started by drastically speeding the handling of insurance claims. But the revolution is moving ahead to tackle a much wider range of disputes, to help retailers large and small and our nation s biggest city satisfy customers and citizens while cutting back costs. And that s just the starting point -- a glimpse of where Cybersettle is going in the next few years. We re finding new markets in the health care industry, in government, even in solving disputes between neighbors. Our patented Cybersettle technology can resolve conflicts anywhere there are two or more parties with a dispute that can be turned into dollars and cents. Cybersettle is an equalizer. A plaintiff s attorney with a cell phone, a computer and no receptionist is the equal of a giant insurance firm with a few hundred attorneys in their legal department, when they use Cybersettle. A claims handler can clear old cases faster using Cybersettle than he or she ever could spending months trying to get the other guy s attorney on the phone. And, a consumer who doesn t get value from a major retailer will be able to seek redress faster and with a greater likelihood of satisfaction using Cybersettle than by going to small claims court. The Lexicomm Group 0 3

4 There s no top or bottom to the size or number of claims we can handle. We ve already facilitated more than a billion dollars in settlements for the insurance industry that shaved nearly $200 million off the carriers' bottom lines. That includes claims that were worth hundreds of dollars and one that was worth more than $12 million dollars. We re part of the expanding field of firms and services offering Online Dispute Resolution (ODR) services; itself part of the larger universe of Alternative Dispute Resolution (ADR). ADR basically includes mediation and arbitration has been around for a very long time. ODR obviously, was born once the number of people communicating and transacting online had hit enough of a critical mass to make it interesting. As an ADR provider we have an edge because we ve joined forces with the most respected institution in that arena, the American Arbitration Association. And, we've begun marketing our services together. As an ODR provider, we have a different type of advantage. We have been pioneering certain types of online dispute resolution solutions. As we break new ground, we have been protecting our "Inventions" along the way. As you will see, that has had a huge Impact on our ability to gain market share and to expand into new markets. Perhaps the most important point is, that like almost every important innovation, Cybersettle was created to solve a problem. We intend to keep on solving them. Lines at the nation s courthouses aren t getting any shorter but people have learned there are other ways of getting satisfaction and solving disputes. The percentage of cases that never get to court proves that. It also proves that sooner or later, everybody becomes reasonable. And it s a good thing they do. Because letting your emotions The Lexicomm Group 0 4

5 control how you manage a case is a very expensive way to do business. Consider this cautionary tale, from the spring of You may have read about it. It is the story of a $54 million suit between a judge and his dry cleaner. Administrative Judge Roy Pearson filed that action, claiming the Korean immigrants who ran his cleaners had lost the pants to his Hickey-Freeman suit, tried to placate him with another man s trousers and ultimately failed to provide the satisfaction guaranteed they promised their customers. What did he win with that clever lawsuit? Nothing. But he lost his good name, if he ever had one. And he almost lost his $96,000 a year job. The presiding judge ruled Pearson failed to prove his pants had disappeared in the first place. He got nothing for his efforts but a week of news coverage that turned him into an international laughing stock. I don t mean to pick on Judge Pearson too much. Irrational behavior is part of everyone s life, though the way he pursued his claim to the point of risking his livelihood seems more than a little irrational. I've seen plenty of that sort of behavior during my years as a lawyer; first as an Assistant District Attorney in The Bronx, then as a general practice attorney in a small town in upstate New York. My work included matrimonial cases, criminal defense, commercial litigation and a great deal of personal injury work. Most of those clients didn t want cases that went on for years. They didn t want to go to court, sit through depositions or spend any time with their attorney, if they could help it. They wanted their cases over and done with. They could only get that if they didn t let their emotions get in the way first. The business world is no different. It pays to seek the quickest possible resolution, one where emotion pays no part in the ultimate resolution. The alternative is often angry disputes that take years to The Lexicomm Group 0 5

6 settle, leaving behind fractured relationships that can never be repaired. Emotion costs money. Pull emotion out of disputes and costs are reduced. Reduce or eliminate other distractions big egos on both sides, resistance to technological change and costs are reduced. Find common ground, make an effort to be reasonable -- and a settlement follows. Moving disputes online, to a forum where emotion plays no part, encourages disputants to take a clean look at issues, to make an offer or demand that's reasonable, and to resolve their conflicts in an extremely civilized way. The case ends. Relationships move forward again. That s what we re all about. In 1998, I invented Cybersettle s online double-blind dispute resolution process with attorney Jim Burchetta. We imagined a black box in cyberspace where plaintiffs and defendants could submit three rounds of offers and demands in the blind. They couldn t see each other s bids, so if they failed to settle, they could pick up negotiations where they d left off. But when their numbers were within an agreed upon mathematical range of each other, the software split the difference. Case settled. Cybersettle initially targeted the insurance industry, and its endless flood of high-volume, low severity claims. Ninety percent of those claims have a value under $100,000. Ninety percent of those have a value of under $50,000 and ninety percent of those have a value under $25,000. The average case in this country settles between $8000 and $10,000 dollars. Insurance firms using our tools have increased their efficiency by 30 percent. Insurance, however, is only a segment of the dispute resolution universe. Anyplace you look in the commercial world, there are disputes, from corporate litigation, health insurance claims, employment cases to, yes: personal disputes with your dry cleaner. The Lexicomm Group 0 6

7 The cost of settling these disputes is draining to business, carriers and consumers - and it s growing every year. Insured and selfinsured U.S. tort costs rose nearly 6 per cent to more than $260 billion in 2004, according to a Tillinghast report. That same year, U.S. property and casualty (P&C) carriers incurred $256 billion in losses plus another $54 billion in additional costs in settling claims. Those costs are passed directly to consumers in the form of higher insurance premiums and indirectly in price hikes for goods and services by companies that have to pay the price to protect themselves from suits. They re the kind of costs that our process impacts by reducing the cycle time the time it takes to settle those disputes by up to eighty per cent. Colin Rule is the head of dispute resolution for ebay - and literally and figuratively wrote the book on online dispute resolution. He says Cybersettle is, the most legitimate business run at the ODR problem right now." He also thinks "insurance is a great target market, because they have tons of cases and it is incredibly expensive for them to maintain all of these files. At Cybersettle, we agree with Colin, but we are not stopping there. The trend towards solving disputes using tools like Cybersettle is clear and strong. William Treanor, Dean of Fordham Law School sees dispute resolution as a critical and burgeoning field. He says that, there are an enormous number of disputes that Cybersettle has a way to resolve-- quickly, inexpensively and without, emotional turmoil. As long as those disputes come down to money, we can help settle them. In our world, the vast majority of disputes do come down to money. This book is the story of how we developed our concepts and turned them into tools to drive a business we built during extremely turbulent times. Some readers will relate to this story. I m also hoping some may learn from our missteps. But more important, this book is The Lexicomm Group 0 7

8 also a window to the future. At Cybersettle we have started a revolution. Here, I have chronicled its beginning and, I believe, pointed out where it is heading. The Lexicomm Group 0 8

9 Chapter 1 Case Study: Taking a Bite out of the Big Apple s Budget Cybersettle got its start in an everyday showdown between two aggressive attorneys who wanted to settle a claims case rather than bring it before a judge. (I ll have more on that a little later.) The path we took to resolving that confrontation led directly to Cybersettle s unique tool for settling monetary disputes online. Intended first for use by insurance firms and plaintiff attorneys, we have and continue to develop other business lines, of which municipalities are among the most promising and most successful. In the 10 years since the idea for Cybersettle was born, New York City has become one of Cybersettle s biggest clients. We re saving the Big Apple tens of millions of dollars in processing costs, while helping New York s citizens resolve their claims more efficiently. In fact, in an announcement released in August 2007, Comptroller Bill Thompson said the city had reduced its expenditures for settlements and judgments by $33.5 million in 2006 and gave credit for a lot of that reduction (almost $27 million!) to Cybersettle. New York City is a great case study for us. It is the perfect example of the kind of impact we can have. But of course, the Big Apple didn't just fall into our laps. We began talks with New York in the winter of The city was in serious financial trouble again that year, thanks to the demise of the Internet dot-com bubble and the deaths and damage wrought by the 9/11 attacks. New York had lost nearly 150 thousand jobs and billions of dollars in revenues and other assets in the months immediately following September 11th. Fear, shock and sadness afflicted many; as did expectations that fresh attacks were on the way. Faced with a billion dollar budget deficit for 2002 that The Lexicomm Group 1 9

10 threatened to balloon to $6 billion in the coming year, incoming Mayor Michael Bloomberg convinced the City Council to raise property taxes a record eighteen percent to close the gap. Meanwhile the city s economy wallowed in its seventh straight recessionary quarter; long after the national economy had recovered from the dot-com bust. New York City needed help. New leadership were looking for new ways of doing business, to help the city become more efficient and to stop bleeding dollars wherever it could. New York insures itself for legal claims, and that was one area that was completely out of control. Peter Speziale, at the time our Vice-President of Operations and currently President of Cybersettle Financial Services and our Rapid Funds product is a former litigation attorney who s represented both an insurance firm and private clients. Like other claims professionals, he knew the city had the dubious distinction of being, the biggest single defendant in the State of New York." The volume of their tort claims is unparalleled. The numbers were staggering. At the time we first began talking with city officials, New York had about 43,000 pending lawsuits. That figure threatened to grow enormously, with approximately 24,000 new notices of claim filed against the city annually. An estimated 9,000 of those involve injuries on city property, such as sidewalks and schools and other personal injury cases. Settling these claims was costing New York around $600 million a year. That s what opened the door for Cybersettle. As New Paradigm think tank Chief Executive Donald Tapscott reminded me recently, New York was facing, the irresistible force of pressure to control the cost of government spending, at the same time meeting up with the immovable object of consumer requirements and demands. Consumers had an Idea of what The Lexicomm Group 1 10

11 city government should be. It should be better. It should be more responsive and it should meet their needs, and address their complaints. Fortunately a new administration lead by Mayor Mike Bloomberg and specifically, Comptroller Bill Thompson was wide open to innovation. Bloomberg, an innovator in the private sector, influenced the city s approach to technology. Bill Thompson, wanted to use it to make a significant impact on costs and better serve his citizens. He means it when he tells reporters, I am a strong advocate of harnessing technology to improve services in government. Comptroller Thompson wants to resolve New Yorkers legitimate claims as quickly as possible. He understands the interplay between technology and the law and looks to be proactive. His view is that citizens are his shareholders. He s got to be responsive to them, if they ve got claims. If the City has liability, it has to pay them back as fast as possible. And it has an obligation to cut down on its backlog. In trying to do that, the city was and is burdened by the statute of limitations on claims cases. It s one year and 90 days under New York State law, as opposed to three years just about anywhere else. That helped create the glut of cases, which went to litigation simply to beat the clock. What often happens is a case goes in to the city system and takes its place behind a load of prior cases. Because the city s load is so high, this case can t begin to get to resolution. Lawyers spend months trying to talk to claims people without ever moving towards a settlement because the claims people are working on the cases ahead in the queue. Then as the statute of limitations deadline approaches, the case automatically goes into litigation, to keep it alive. It has to. It either goes to litigation or it is dismissed as a matter of law. The plaintiff s lawyers can t let that happen, so a large volume of claims go into litigation. The Lexicomm Group 1 11

12 And once a case goes into litigation in the New York courts, it takes them an average of five-to-seven years to settle. There s an expanding load of cases but a finite number of judges and lawyers to handle them. 111 Centre Street is a nondescript modern building in downtown Manhattan s civic center. It s just one of the Civil Courts, where cases against the City of New York, for amounts up to $25,000 dollars are heard. (Cases for larger amounts are filed in State Supreme Court.) According to the 111 Centre Street website, each year 625,000 cases are filed in the civil courts, where 120 judges serve. Think about it. That averages out to better than 5,200 new cases per judge, per year. The most competent jurist in the history of jurisprudence couldn t do justice with a case load that large. As attorneys, we learn in law school that justice delayed is justice denied. When we go into practice, we learn that justice delayed is also very expensive. Litigation costs are literally consuming the country and they were helping consume New York s future in That s what the comptroller s office was up against. How could New York City cut into its enormous backload of cases while keeping new cases from going into litigation? And how could it innovate and come up with new solutions while struggling with a growing deficit that made it tough to add resources - even though existing resources had proved inadequate? Comptroller Thompson s office developed a solution based on information management. It first installed an in-house database called OAISIS (Omnibus Automated Image Storage and Information System); it developed jointly with Universal Systems. OAISIS provides central storage for any and all files The Lexicomm Group 1 12

13 relating to claims and routes those claims to city representatives in charge of investigations and negotiations. It s a state of the art claims management system and really quite phenomenal. Cybersettle became the other part of Thompson s solution. The comptroller was interested when we approached him through an intermediary, saying we had a great system that could really help the city make major reductions in its backlog of cases. Then General Counsel Michael Carey, now a consultant to Cybersettle, Senior Vice President (now General Counsel) Maryann Jennings, Regina Voarino, Vice President of Operations and John Zissu, our Director of Marketing helped prepare the presentation which I delivered to the comptroller's office. Thompson was interested. Interested enough that starting in 2003, his office began doing significant due diligence on Cybersettle. Members of the team talked to our insurance company customers, did a thorough background check on our technology and came in to see it in action. Critically for Cybersettle, OAISIS also paved the way for the comptroller s office to use our process. Senior Vice President Mary Ann Jennings says installing OAISIS made it possible for Cybersettle, to integrate into their system and share the data on a daily basis to make it even faster and easier for their examiners". Sung Choi, who is in charge of technology, and Gary Thater who is responsible for our information services and work flow design, developed software (they call it "middleware") that allowed the OASIS system to link directly to the Cybersettle system. The first time it had been done and it worked flawlessly. We get a feed from them every single day of all the claims that come in, and then the adjuster or the examiner can just go in when they're ready to settle, click on the case and all the information is there. They just have to put their numbers in. In fact, Cybersettles systems are designed in such a way that we can create a seemless link to just about any claims management The Lexicomm Group 1 13

14 system in use today. The City was sufficiently impressed to enter into a pilot program with Cybersettle in February Because our patent makes us the sole source of this process, it was a little easier to get going with them than it might have been otherwise. Generally you have to do a full request for a proposal (RFP) with the City but because we re a sole source provider, and we offered them a very inexpensive rate, we were able to get through the red tape relatively quickly. Regina Voarino became the onsite manager of the New York City project. She did an amazing job. The City seemed to anticipate good results. Michael Bott, CIO of the New York City Comptroller's Office told a reporter, "We definitely view Cybersettle as a vehicle to help reduce the amount of payments made, principally through avoiding litigation." But it takes two to make or resolve a dispute. At the same time New York City was moving towards using Cybersettle, we had to persuade the other side - the trial lawyers of the State of New York to use our process. Statewide we ve identified about 12,000 lawyers that do plaintiffs personal injury work in one form or another. About 3,500 to 4,000 of them are members of the New York State Trial Lawyers Association. They re a very cohesive, very highly motivated group. They champion themselves and the rights of injured parties. That s the whole basis upon which they exist. We approached Jeff Lichtman, a New York City trial attorney who was President of the New York State Trial Lawyers Association (NYSTLA) at the time. Initially, Jeff was very skeptical. He was concerned we would take business away from his members, and needed to understand how using Cybersettle would benefit plaintiffs. The Lexicomm Group 1 14

15 And as Michael Aaronson, Bureau Chief of the City Comptroller's Bureau of Law and Adjustment put it, Plaintiffs' attorneys are usually very traditional in the way they do business. But we got through to Jeff and the Trial Lawyer s Association. We explained the model we were using with New York City was business-to-business. We had a great team including Alex Badillo, Akin Johnson and Andrea Carriere who were real MVPs working with both the NYC attorneys and adjusters. At the time, our process was designed for claims professionals and plaintiff attorneys (We now have a system designed for use by unrepresented claimants, in other sorts of cases). Once the trial lawyers were comfortable with that, we showed them results from Cybersettle s insurance industry clients, so they could understand how using the process could winnow down the mass of claims New York was facing while benefiting them and their clients. By this time we had already proved that using Cybersettle could help settle their cases far more quickly than they could without us. That meant everyone would save money. Because when claims remain pending for a long time, they become extremely expensive to administer; for the City, the plaintiff and for his or her attorney, who has to lay out money on the case. We explained all that in a long meeting with Jeff Lichtman, who ultimately agreed with us that using Cybersettle would benefit trial lawyers, plaintiffs and New York City. It helped that we had lawyers at the table for those discussions. I had been a trial lawyer for 15 years. I m a member of the New York State Trial Lawyers Association and the New York State Bar Association. At Cybersettle, we understand the trials and tribulations of The Lexicomm Group 1 15

16 practicing law in a one, two or three person shop. That s generally what plaintiff s personal injury lawyers firms look like. They work on a contingency basis and only get paid if they succeed. That s how they live their life. It s tough work and the only time they re going to get paid is if they re successful. Using Cybersettle, both sides could succeed by processing claims faster, cutting costs to reach a settlement and moving on to the next case. After those meetings, the New York State Trial Lawyers Association really got behind Cybersettle. Jeff Lichtman and the NYSTLA publicly endorsed the City s demonstration project. And with the Association s backing, we got the pilot with the City underway. Success with New York City was almost instantaneous. In just the first three months of that demonstration, Michael Aaronson reported that, New York City broke the 200 settlement mark, which was a pretty big milestone for us. By that, I mean we successfully entered into 200 settlements using Cybersettle, and our overall average settlement for these was a little over $11,000. For the same types of claims, if they go on to litigation, the average is about $27,500. So it is about $16,000 per claim in settlement savings." Nearly 1,200 personal injury cases were submitted and went through our process, over the full course of the trial. 684 of those cases were settled, for sums ranging from $1,200 to $75,000 dollars. The average claim that was put through settled in 30 days or less. And between 60 and 65 percent, were settled either online or in less than 60 days, because people went through the process, got close to each other, and then settled. That s a remarkable number. The engagement rate the percentage of lawyers who The Lexicomm Group 1 16

17 participated in the process was almost 70 percent. That compares to anywhere from a low of 40 percent to a high of up to 60 percent for our insurance clients. That was a great result that took a joint effort by Comptroller Thompson s office, the New York State Trial Lawyers Association and Cybersettle s settlement center staff. And it s a testament to the way our process has won acceptance. Thirty-five percent of the claims settled online. It was a spectacular result, as in general, we settle between 15 and 25 percent of claims submitted to Cybersettle, using just our online tool. By the time the first year of the demonstration project ended, Comptroller Thompson said the city had saved more than $11 million dollars. A second demonstration project year followed. The Comptroller wanted at least two years of hard data to make sure that this was going to work. He also wanted to widen the scope of the trial, telling the New York Post, Given the initial success of this project, we plan to expand the program to include property damage and medical-malpractice claims. The Cybersettle pilot did even better in its second year. In November of 2005, City officials told Business Week magazine New York had saved around another $13 million dollars using Cybersettle. The savings came primarily from eliminating unnecessary administrative costs -- allocated loss adjustment expenses, as we call them. But for officials like Michael Aaronson, that s not all Cybersettle did. The real savings are those we enjoy when we don't have to go into litigation, and when we can resolve cases that should be gotten rid of early in the process. Then our limited resources can concentrate on those cases that must be litigated." Here s how the numbers break down. The Cybersettle pilot The Lexicomm Group 1 17

18 ran from February 2004 through June According to the city, just under a thousand personal injury claims were settled through Cybersettle during the pilot. When Cybersettle was used successfully, the average length of time from filing the claim to settlement was 278 days compared to 1,629 days for claims settled by other means. And the cost of settlements made through Cybersettle averaged $11,252. Cases settled without us averaged $38,809. Nobody lost a job because of the program. Not a single claims handler in New York City got displaced. We just created enormous efficiency within a very significant bucket of claims. As a result of that, Business Week named us one of the top 50 technology companies in the world. The New York City program is one of the greatest successes we ve had so far. But we were only able to get that chance because all the stars aligned. We had a political leader, Comptroller William Thompson, who set out a course of conduct that said We need to utilize technology to make New York City more efficient. We had a bar association that said, You know, we can t be beating each others brains in because it takes more than 5 years to resolve these cases. It s not fair to plaintiffs. It s not fair to us, and it s not fair for the city. They were motivated to get things done correctly. And, of course, we had a great product. When we get the stars aligned, it works. When we get topdown management, like we have with Comptroller Thompson, we will be successful every time. Our success with the New York City pilot paid off nicely. We have signed a three-year contract. And together we re setting the pace for how the world is going to do business The Lexicomm Group 1 18

19 Chapter 2 The Big Idea is Born Big disruptive ideas that become world-changing products aren t announced with a blare of trumpets and a roll of drums. They re not introduced at a live news conference, with the broadcast networks, cable news and assorted bloggers hanging on every word. Actually big, disruptive ideas start small, often in obscurity, and then they grow in ways no one, including the person with the first flash of insight, could have imagined. Examples? The first telephone call in 1876 connected two men who were just down the hall from one another. The Wright Brothers first flight in 1903 traveled a grand total of 120 feet. The Internet was established in the early 1960 s, so U.S. government researchers could link to existing computer networks whose standards were otherwise incompatible. No one in 1876 imagined a world with wireless telephones that would make it possible to call a deli counter in Brooklyn from a table at a café in Katmandu. In 1903, jetliners flying non-stop from Tokyo to Los Angeles were the stuff of science fiction. And ecommerce sales - that for U.S. retail alone totaled over $93 billion in 2005 were unthinkable when the Internet was born. Innovations like these shaped new industries, creating new opportunities and enormous wealth. They also disrupted and eventually transformed the old ways of doing business in their respective sectors. And unfortunately, disruptive change, however productive, invariably meets resistance from entrenched interests. Even if adapting to and accepting that change makes them more efficient, responsive and profitable. At Cybersettle, resistance to change by some insurance firms and attorneys is a barrier we ve fought hard to overcome. Though The Lexicomm Group 2 19

20 shaking up two conservative industries didn t even cross our minds when the idea behind our process was born. In the summer of 1995, I was an attorney in private practice in Carmel, New York, a town about fifty miles north of The Bronx, where I d worked as an assistant district attorney. I had a solid practice, sometimes working with, and other times against, a local attorney named Jim Burchetta. We were outside a courthouse, trying to negotiate a settlement in a personal injury case, when we had the eureka moment that lead to Cybersettle. I represented the defense. I asked, What s your demand? He gave me some ridiculous, off the charts number. I looked at him, and I said, Jim He said, Well, what s your offer? I told him, I can t make an offer against a demand like that. There s nowhere to go. He gave me the classic response, what every lawyer says. Well, I can t leave any money on the table. I told him, That may be true, but I don t offer against over-thetop demands. And then Burchetta said, I m going to write down on a piece of paper what I m really willing to take. You can t see my number. You write down on a piece of paper what you re really willing to pay. I can t see your number. We re both fair and reasonable, and we both know the law and the facts. We should be very close. We re going to give those two pieces of paper to the court clerk. We re going to let him look at the numbers. I can t see your number; you can t see mine. If we re close, say within 20% of The Lexicomm Group 2 20