Dispute Settlement Counsel

Archive for March, 2009

What exactly is social enterprise? We read about social capitalist businesses, green companies, and sustainable business practices. One of my favorite magazines, Fast Company, frequently awards top social enterprise businesses and offers stories about how these companies serve some greater purpose beyond making a profit. Recalling Paul Newman’s compelling question in Butch Cassidy and the Sundance Kid, I wanted to find out more about exactly “Who are these guys?” It seems there is a natural synergy between resolving disputes using non-adversarial methods and the core values of social enterprise, but I wanted to explore how this synergy could be acted upon in productive ways. 

So recently (3/27/09), I attended the Eleventh Annual Symposium on Spirituality in Business, sponsored by Sustainable Business Network of Boston at Babson College in Wellesley. My purpose was to learn more about the notions of sustainable business and get to know and listen to people who owned and worked with social enterprise businesses. Among the businesses attending was the day’s honoree, Equal Exchange, based in West Bridgewater, MA., a sustainable business built on a model of taking care of employees to the extent that the employees genuinely own the company and make the decisions together.   Read the rest of this entry »

Today, many people try to save time and money by using templates and programs available on line or in bookstores to draft their own legal documents. There are some good products out there and some language is pretty much boilerplate.

But not all of it. The devil is in the details, it’s often said. The problem with using already prepared contracts and agreements is that no two situations are alike. Templates designed for general use could not possibly know the specific circumstances of your situation and the specific purposes for your agreement or contract.

The word processing of a contract is a very small part of the service provided and the value added of a lawyer’s work. The larger parts are knowing the client well, caring about the little things in the client’s circumstances, and advising the client on the best ways of dealing with these unique situations: The nature of relationship between our clients and those they do business with, the specific details of his organization or her business, the information and idiosyncrasies that are unique to this situation and the particular relationship that the agreement addresses. The vital purpose fulfilled by having your lawyer draft, fine tune and negotiate the contract is to consider all these specific details and make sure they are addressed.

A lawyer who counsels on and drafts agreements is a conflict resolution advocate. The lawyer is called upon to anticipate situations that may arise in the future of the relationship between the parties, and efficiently address those situations in advance in the contract. A boilerplate agreement downloaded from some general program or software can’t possibly fulfill this function. This is where the real advocacy and representation lives; where an attorney proves his or her real worth to the client. We need to provide good answers in the contract to this question: What if this happens?    Read the rest of this entry »

What do Abraham Lincoln, Mark McCormack and Jesus have in common?

They were all respected counselors in their time and pointed out the advantages resolving disputes quickly and efficiently.

Today, I happened to check back with a book I hadn’t read for years: The Terrible Truth About Lawyers, by Mark H. McCormack, a lawyer who is better known as the founder, CEO and Chairman of the International Management Group.  Written in 1987, it was given to me by a relative while I was in law school in 1988.  I read it eagerly then, and hadn’t gone back to it since.

In the interim, my legal career began prosecuting child abuse cases in Westchester County, NY, then litigating all kinds of cases in New York and Massachusetts for the better part of the next two decades. In the process, I crossed paths with processes like Collaborative Law, mediation and ombuds services, getting trained and gathering experience in each and developing an part of my practice in Preventive Law.  As I got on in counseling and representing clients, I’ve come to know that they are best served when we help them prevent disputes from ever arising.  When conflicts do arise, we provide value when we help them work through and resolve disputes effectively using methods best suited to their situations and interests and that are cost, time and resource efficient.  Read the rest of this entry »

(last in this series of seven)

Last week, in discussing the value of confidentiality in dispute resolution, we noted that companies, organizations and individuals in disputes are not often motivated or focused on things like respect, civility, empathy, equity, fairness or just being gracious in our dealing with the other party to the dispute. In fact, some lawyers and some clients view the consideration of these notions as a sign of weakness and urge clients to just stick to the facts and the law.

The truth is, these elements go a long way toward creating a better environment for negotiation, establishing some trust, and ultimately reaching a more complete and lasting resolution.  Further, they are often at the core of those interests that are important to parties involved in sexual harassment, discrimination, medical error or family business disputes, along with the need for their views to be heard and considered, and the need to change a flawed workplace culture.   Read the rest of this entry »