Dispute Settlement Counsel

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?  

All of these considerations factor into why Collaborative Practice is a sustainable model. The demand for a sustainable model is not just a temporary buzz phrase. It may have taken the need to tighten one’s belt to recognize that one was paying too much or operating inefficiently before, but having recognized that, it’s not likely we are going to return to those excesses when the economy is adjusted and strengthened. The current focus on sustainable models is steadily being transformed into a value that businesses and organizations must embrace if they want to succeed and grow. This holds true for legal services as well. If you were to use the label “green” to describe any dispute resolution process, Collaborative Practice would be the one that earns that rating.  

One example of why collaborative processes are sustainable while the cumbersome model of civil procedure is not is the process of information exchange. In litigation, the present practices of discovery are not sustainable because they take far too long, are inefficient and are too expensive. Discovery is the black hole of civil procedure, the element that consumes most of the time and much of the client’s money. It’s not at all unusual for the discovery process alone to last an entire year and even longer if the parties have to resort to motion practice to compel the other side to turn run over documents. With the added elements of electronic discovery, the cost of retrieving and producing information – much of which is useless and irrelevant – is damaging and prohibitive, especially to small closely-held or family businesses or non-profit organizations. Factor into that process the number of lost man-hours because employees that could be working are preoccupied with retrieving, reviewing and sorting documents, pulled away to prepare for and then give depositions, draft and review affidavits or respond to interrogatories and you are looking at tremendous costs and non-productivity.

Compare that with the simple and streamlined requirement of Collaborative Practice: The parties and lawyers are required, pursuant to a written agreement, to openly and voluntarily exchange any and all relevant information. Right after the interests and goals of the parties have been identified, the next step is this information exchange process. It typically takes two weeks to a month; two months would be a long time for information exchange in any collaborative process. This is required by written agreement; the failure to do so by either party is grounds for terminating the collaborative process. Because Collaborative Practice treats the use and exchange of information differently than litigation, its process for the sharing of relevant information is much more direct: It cuts right to the chase. Our goal is to achieve a good resolution, so we need to have all the relevant information in front of us, out in the open and on the table, now. Simple. Direct. Efficient. Fast. No hide the ball. No games. We have a goal, we approach it in a business-like way, get it done and done well.

That is just one reason why Collaborative Practice is a sustainable model.

(We’ll examine further why litigation-style discovery and motion practice is not sustainable and also debunk the myths about not wanting to give the other side “free discovery” in our next blog posting.)