Dispute Settlement Counsel

Archive for June, 2009

Often I hear attorneys giving their clients an admonition or expressing reservations about using alternative dispute resolution processes like mediation or collaborative law that usually goes something like this: “I don’t think mediation is such a good idea because it’s just a tool used by the other lawyer to obtain free discovery.”

Let’s analyze that statement, looking at it with a reasonable person’s perspective and logic. And let’s test the assumptions inherent in that statement to see if it makes sense. Is the risk of “free discovery” really a serious concern?

Is there anything really problematic with giving the other side “free discovery”? And if “free” discovery is not desirable, then exactly what kind of discovery do we prefer? The opposite of “free” discovery would logically be discovery that is either “paid” for, or one that takes longer and requires the other side to work harder to get. So who is “paying” for the discovery? (Hint: In litigation, if the other side is paying, chances are very good that you are paying too.) Put differently, is the notion of “free discovery” really a misnomer? Read the rest of this entry »

Why Collaborative Practice is a sustainable model for dispute resolution; Part I, Information Exchange

During a recent radio interview for the Business Beat on WICN FM (90.5 fm out of Worcester) host Steve D’Agostino asked if Collaborative Practice was here to stay or a passing fad like the Hula Hoop. It was a great question, the kind which you wish you had more time than a minute to answer. This blog gives me the opportunity to answer it more fully.

Collaborative Practice is here to stay. It will stand the test of time because it is, among other things, a sustainable model, a sort of “greening” of the process of resolving disputes. It will grow in use because it directly answers the questions and concerns like these that today’s clients have:

How can I resolve this dispute quickly?

What is the more efficient and cost-effective process?

How do I resolve this conflict and still maintain a healthy relationship with the party on the other side?

How do I keep this dispute private and confidential?

Is there a way I can have some say and control over the process?

How do we reach resolution without putting the final decisions in the hands of a judge, a jury or a non-appealable arbitrator?

Where can we go to come up with creative solutions that are tailored to our situation?   Read the rest of this entry »

I got a call this week from a lawyer representing a client in a dispute involving environmental and breach of contract issues. He was following up on a recommendation to use me as a mediator in his case. His only question had to do with whether I had recent experience in environmental Superfund issues.

I advised him that my specialty area of study in law school was environmental law and received a certificate in environment law along with my J.D. from Pace Law School, known for its environmental studies program. Also, while I had litigated some major environmental cases earlier in my career, I hadn’t worked on any Superfund cases lately. The lawyer thanked me for my honesty and said he would consider that and get back to me.

The question about whether a mediator is experienced in a certain area of law triggered some thoughts. On the one hand, it’s a fair question and certainly having a mediator who has familiarity with the specific area of law involved is beneficial. But getting up to speed on the legal issues and the body of law involved in a dispute is not a major challenge for most mediators. Gathering and grasping the relevant information and the doing the legal analysis is important for a mediator. But the far more vital skill set and the true value that a good mediator brings to the table is his or her talent and ability as a neutral facilitator. That is, after all, why parties hire mediators and that should be the strongest factor and consideration.

Read the rest of this entry »