Dispute Settlement Counsel

Last week I attended a conference on Sustainability in Business, co-sponsored by the Boston College Leadership for Change program and the Sustainable Business Network of Greater Boston.  In a group discussion, I was asked this question:

“So what does the issue of sustainability have to do with lawyers and dispute resolution?

Good question.  We typically think of sustainability as it relates to protecting our environment, going green, conserving energy, avoiding pollution, etc.   One obvious intersection of dispute resolution and sustainability would be the conflicts that are inherent when you think about the different interests and stakeholders interacting on sustainability issues.  These matters would be better resolved by non-adversarial approaches that focus on satisfying interest, rather than fights between positions and rights.

But there’s another intersection.  Shouldn’t the consideration of sustainability also extend to all resources, not just the natural ones?  The concept can also be applied to the inefficient use of time and funds, the misuse of human resources, and the draining of energies and emotions.  These can have a devastating impact on the sustainability of a business, an organization or a way of doing things.

I give a lot of thought to the way we resolve disputes, and the efficiency of the methods and approaches we use.  The more common approaches, particularly litigation and court intervention as we know it today, clearly are not sustainable.

Litigation cost too much, takes too long, carelessly misuses our human resources and is often damaging to our psyches.  One reason our courts cannot handle their caseloads is because of budget cuts and staffing reductions.  But a bigger reason, completely overlooked, is that we are asking our court system to do more than it should be doing.

Court and litigation should be our last resort, only turned to when other attempts to resolve disputes have failed, not the starting point.  If we utilized our courts that way, they would be sustainable.  But our legal system is built on an adversarial model, in which court has become the first stop – for filing a complaint or a petition – rather than the last resort.

Over 98% of the case filed in courts settle and never get tried!  This fact begs the question:  If the chance that our case will get to trial is less than 2%, then why are we going to the court to decide the matter?

In the language of the green community, why would you spend all your time, money, resources, systemic development, education and emotions pursuing oil, coal and fossil fuels if you knew that at the end of the day, you were going to use solar or wind energy?

When it comes to resolving disputes, people spend thousands of dollars, years of time, hundreds of man hours, immeasurable human energy and emotion, ruin good relationship and damage reputations by litigating.  Only at the end of that process do they then half-heartedly turn to a method they should have utilized from the very beginning of their dispute.  And after all that waste and abuse, the process they just put themselves through is one they swear they will never go through again and the result is almost always one with which they are dissatisfied.

Sustainable models for resolving problems exist.  One such model is Integrated Dispute Resolution (IDR).

What do speed limits and dispute resolution processes have in common?

They have to be right for the situation.

I was driving on the Mass. Pike this week, thinking about the idea of one speed limit for everyone.  Speed limits are established for the masses; a good average speed is set that is reasonable.  On the Mass. Pike for example, the posted speed is either 65 mph or 55 mph.

For excellent drivers under good driving conditions – light traffic, good visibility, dry road surface, 65 mph is probably too slow.  For drivers that have diminished reflexes, skills, sight or attention span, 65 mph is likely too fast.

Several external factors impact what is a good speed: Tire tread, engine responsiveness, things dangling or pasted onto windows that impact visibility, weather conditions, traffic volume, road surface, what else the driver is doing: texting, keying in numbers on a phone or destination on a GPS, deeply engrossed in conversations or thought, eating, putting on makeup, reading something, drunk, high on drugs, really agitated, reaching into the back for something, etc.

The right speed depends more on the situation and the circumstances than the posted speed limit.  The same is true for how we approach resolving disputes. One speed, one process, one approach, does not fit every situation.

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Mediation and Collaborative Law are two methods that are moving steadily toward the forefront of dispute resolution.  With this heightened interest in early intervention and avoiding litigation, the question that gets increasingly asked is this: What is the difference between Collaborative Law and mediation?  There are several key differences.

First is the timing of their use.  While parties would greatly benefit by using mediation earlier, before they file a lawsuit or early on in the litigation, parties usually turn to mediation too late, after discovery is completed, and often just before the trial.  By then, the parties have already spent lots of time and money and have suffered the collateral damage of litigation.  They are more adversarial then they were at the outset, and often only turning to mediation to avoid the uncertainties of putting their fate in the hands of a jury or judge.  The costs have taken their toll, too much time has passed and their relationships have been damaged or destroyed.

Collaborative Law, on the other hand, is designed as early intervention, to be used instead of and before turning to litigation.  Its focus is only on resolution and settlement by intention.  Because of this, the parties will typically save money, save time, avoid the collateral damage of litigation and still keep the decision-making in their control.

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Whenever I suggest the use of an Ombuds person (also referred to as an “Ombuds” or an “Ombudsman”) as a key component in the business strategy of being proactive and taking steps to prevent disputes from arising, I get the question:  What is an ombuds? What does an Ombuds person do?

An ombuds is a neutral, independent and confidential resource person that a company or an organization hires to help it solve problems – small ones as well as big ones – early on, before they escalate into bigger problems or disputes.  An Ombuds is usually someone who is either trained and/or talented as a trusted counselor/intermediary/facilitator.   An Ombuds is a part of the process of identifying and solving the problem early on, and plays an important role in helping to solve it.  The Ombuds may not be the one that solves it, as much as being the person who puts the wheels of solution into motion.

The most important skill that the Ombuds needs to have is the talent of active and empathetic listening.  That is a talent that is highly underrated and often overlooked in the business or organizational world.  But it is critical, and is greatly appreciated by those who benefit from the efforts of a good listener.

Equally vital is the talent for having the insight and resourcefulness to identify the essence of the problem and know which way to direct people’s actions, and what resources to bring to bear to solve it.  You might call an Ombuds a problem solving architect or engineer, a person with a knack for dissecting the problem, seeing what needs to be done to solve it, and setting things in motion in a neutral way, all the while respecting the confidentiality of the situation. Read the rest of this entry »

Most people involved in a dispute think the first step to resolving it is filing a complaint in court and commencing litigation.  Then, you basically turn the case over to your lawyers and wait to hear good news from them about the results.  Those unschooled in litigation think that very shortly after that, the case will settle, because “all cases settle”, and they will get a nice chunk of money without much time, cost or trauma.

Others think that within a time about as quick as you can pick up your remote, turn on one of many weekly series’ involving trials, and watch the show, your case will be tried, your lawyer will stand up and make some charismatic closing argument like the ones on TV, and your “slam dunk” case will be won.

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I had a job interview this week.  It was not my dream job, but it was a paying job, which is enough to cause this third-year law student to pay attention.  The interviewer wanted to discuss my experience with alternative dispute resolution (“ADR”).  I am earning a Certificate of Dispute Resolution in addition to my JD. I also intern with the Massachusetts Collaborative Law Council, so I have some interest with various forms of ADR. 

As I enthusiastically explained my viewpoint on the strengths of mediation and other ADR processes and why I think they are advantageous to clients, he interrupted me with a knowing smile and said condescendingly, “Yes, but I like going to court.”  He then went on to explain the thrill he gets from the entire litigation process…and I zoned out.

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Business disputes, especially those involving small closely held or family businesses, almost always include relationships that are ongoing and need to be preserved, and often arise out of issues and unmet interests and needs that lie beneath the surface of the stated positions. 

For these reasons and others set out below, Collaborative Law and other non-adversarial approaches designed to resolve business dispute early have been providing value to parties who have used these methods to solve their disputes.  In addition to the need to keep business relationships healthy, there are other practical reasons that favor the use of a collaborative process and approach: cost and time efficiency, confidentiality, and the ability for the parties to determine their own options for resolution.  For family businesses, mission-based, non-profit organizations, entrepreneurial and social enterprise businesses, the cost, time spent and collateral damage of the litigation process would be devastating to their business goals, operations and budgets.  Collaborative process approaches have delivered good results.  

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