Dispute Settlement Counsel

Archive for February, 2009

Part VI. The Sovereignty of the Client

First, for those of you following this series of blog entries closely enough to notice that we skipped a topic – Confidentiality – good work in attentiveness. That’s a great skill for an ADR practitioner or a user to have.

Another is the insight to recognize the need to “call an audible” (a football reference), or step out of the pre-arranged order of things because the situation calls for it. To be adept at creating the type of “thinking outside the box” solutions that can be done in ADR processes is also a key dispute resolution skill. This blog exemplifies these traits.   Read the rest of this entry »

Part V.   Confidentiality

When you file a lawsuit in a court, the lawsuit and information related to it become public information.  Most courts today either utilize electronic filing or will be soon.  You may not think about it or realize it, but this means anyone can go online and find out about your dispute.

Most of the time, parties involved in a dispute would prefer that the fact that they are involved in a conflict as well as its details remain a private matter.  This is especially true of disputes that involve delicate or personal matters, like divorces, probate cases or business disputes between and within families.  But it is also important in cases involving “mission-based organizations” – churches, hospitals, schools and colleges, non-profits, social capitalism enterprises, foundations, green companies, etc. — for whom reputations and confidentiality are important.   Read the rest of this entry »

Part IV. Ability to design solutions for the specific situation February 14, 2009

(Happy Valentine’s Day!)

Here’s where ADR really separates itself from the limitations of arbitration and litigation and flexes it’s “think outside the box” powers. When there are several interests to be satisfied in a dispute and it’s about more than money, that’s usually a good indicator that your dispute, your situation and set of circumstances needs the creativity and flexibility of ADR processes like collaborative law and mediation.

Courts are designed to really only do two things: 1. Order one party to pay another party money (monetary damages), and 2. order one party to either stop doing something or direct a party to allow the other party to do something (injunctive relief). In business disputes, the court’s ability to quickly intervene and either stop a party from taking an action or allow a party to continue an action without interference can be essential and that is something most ADR processes are not designed to do. But just about everything else, including money payments, can be addressed by ADR methods and as we have already written about, addressed more efficiently and without the collateral damage of litigation. And here’s the fun part: ADR can be very creative, innovative and situational.   Read the rest of this entry »

Part III. Preserving Important Relationships February 7, 2009

How important is it to parties in a dispute to preserve relationships? There are many types of relationships that are central to a dispute: Between contractors and subcontractors, teachers and administrators, pastors and parishioners, doctors and patients, divorcing husbands and wives, family members of a family business, partners of a company, family members in a probate process, non-profit organizations and independent contractors they work with, builders and homeowners, to name some.

One of the factors that make a case a good candidate for using non-adversarial approaches to dispute resolution is the importance of preserving the business, organizational or family relationship and keeping it healthy. If the relationship must survive the dispute, if there will be ongoing dealings or contact between the disputing parties after the dispute is resolved, then ADR approaches like collaborative law, case evaluation and mediation have added value. Like it or not, adversarial positional processes like arbitration and litigation, at the very least, put a strain on relationships and often destroy them altogether. And when the parties go too deep into the litigation process before they turn to a mediator to assist in reaching a settlement, even if the mediation does result in a settlement, the relationships may have already been seriously damaged. The sooner the parties turn to an ADR process, the better the possibility of preserving these important and ongoing relationships.   Read the rest of this entry »