Dispute Settlement Counsel

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.  

I went to see the Gipsy Kings concert with my wife at the newly re-opened House of Blues in Boston last night. They were really hot; “caliente”! And I was still thinking about them now during this morning’s blog session: What makes them so good, and so exciting that they would attract people from all generations, all ethnic backgrounds, and all economic and social strata for over 20 years? I came up with three things.

First, their passion for what they do is obvious and it’s contagious. You cannot sit still listening to the Gipsy Kings; you feel their energy. They are truly kings, sovereigns of their craft. (Not all ADR practitioners are truly passionate about their craft, but the ones who are true conflict resolution advocates are. You’ll feel the difference.)

Second, their collaboration amongst each other is amazing. Six acoustic/flamenco guitar players, one bass, two percussionists and one keyboard/synthesizer player, playing as one, as tight a sound as you can imagine, in perfect sync with each other.

Third, their willingness and ability to improvise and change it up live. When you go to a concert, you expect the band to play songs the way they recorded them. Yet these guys changed up their songs frequently – changing tempos, changing rhythms, feeding off each other’s improvs and runs. Very powerful. And yet they stayed true to their core message – the essence of the songs we love and the band they are — and actually made the variation even more interesting than the original song.

So what do the Gipsy Kings and these observations have to do with ADR, and more specifically, the concept of the “sovereignty of the client”? First, the ability and need to improvise is a central component of the collaborative processes and mediation and is necessary for the client to be sovereign. Second, the collaboration of everyone involved – clients, lawyers, mediators, case evaluators, neutral experts, coaches - is critical to the depth of success of these interest-based, ADR processes. And third, the energy of those who are trained and committed to using these alternative approaches is a creative, forward-looking, efficient type of energy and is noticeable, contagious, positive and powerful.

This “client sovereignty” concept in ADR applications means that it is up to the clients to determine what process to use to resolve their dispute and what the final agreed-upon options and resolution will be. The process is not dictated by rules of civil procedure or local courts. The parties decide the ground rules or rules of engagement they together agree are best and most appropriate for them. If mediation is the best approach, and within that a certain style of mediating, that’s what the parties will use and what their lawyers will work within. If collaborative process is the better fit, and within that the parties need to improvise, call in a case evaluator or a mediator, or have a collaborative meeting at a different location, or in the evening or on a Saturday, ADR has the flexibility and fluidity to do that.

And the options crafted and solutions are determined by the clients, working together with their lawyers and with each other, in a collaborative way, improvising as needed. We stay within our core message and mission – interest-based negotiation, a.k.a. conflict resolution advocacy – but we go outside the box when the situation calls for it and when the clients need to do so. The clients, with their lawyers’ assistance, assess their circumstances and the situation they are in and execute the plans that will work best to meet their needs. The lawyers and mediators help to decide to bring in certain personnel at certain times, what the order of tasks will be, what the pace or tempo will be so that the dispute resolution stays in a good rhythm and the parties and lawyers remain in sync with each other.

In client sovereignty, the parties decide, with the lawyers’ help, when to meet, where to meet, what the agenda will be, which issues to address first, how long each collaborative session or mediation will go, how many sessions to have, whether some neutral experts are needed to assist in developing options and crafting good solutions, what each party needs to do between sessions, what options to implement, etc. I was asked by a reporter last week how long a typical collaborative law case would take to resolve, as compared to traditional litigation. While I was able to say that the cases I’ve worked on were usually resolved in about 15-20% of the time traditional litigation may have taken, the answer to that question is “it’s really up to the clients how quickly they want to resolve it.” It also depends on the complexities of the interests of the clients.

For clients who need to control both the process and decision-making and not surrender these to a third party decision-maker or default into a procedure that doesn’t work best for them, ADR approaches that feature this client sovereignty will likely be a good fit.

Next week:  Maintaining Confidentiality

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