Dispute Settlement Counsel

Archive for August, 2009

Last time (Aug. 17), we discussed the advantages of early mediation, as opposed to the more traditional and old school timing of mediation, which usually is just before trial. The standard argument for waiting until before trial is that it is premature to use mediation until all discovery has been completed.

There is some value and logic to that view, because it is usually helpful to the mediation process if both parties and the mediator have the basic relevant facts and information before them. The problem is that the discovery process in litigation is far too burdensome, slow, expensive, wasteful and potentially damaging. It is also inefficient in the way it utilizes discovery and information. (See blog postings of June 21, June 29 and August 3, 2009). Read the rest of this entry »

Mediation is frequently used to resolve disputes of all kinds – business, employment, negligence, medical error, probate, divorces – and the trend toward mediation is growing. Even litigators will tell you that they often end up calling in a mediator before going to trial to get the case resolved. It’s often a better alternative than going to trial, incurring additional costs for the client and risking an uncertain result that is out of the control of the parties and lawyers. Statistically, 98% of the cases filed with the courts settle, and many of those utilize mediation to settle it.

The critical distinction here is when the mediation occurs. The problem with utilizing mediation is not the process of mediation, but rather that the parties wait too long before they turn to the mediator. Read the rest of this entry »

Like discovery, motion practice as we now know it, is not very sustainable either. Motion practice can be a useful tool used to streamline litigation and narrow the issues. Still, within the parameters of civil procedure, it can be a time consuming and costly part of litigation. Often, its purposes can be accomplished by adopting the practice of transparency that is inherent in the nature of Collaborative Practice.

Consider this alternative: Once an initial legal analysis is done, some very open and transparent exchanges of positions and legal arguments between the lawyers can and should take place. Assuming both lawyers assess the case well, they can agree to be open and transparent about their clients’ respective claims and legal positions. This can be helpful in crystallizing both the basis for and the focus of the negotiation and can move the parties to the negotiating table sooner.  Read the rest of this entry »

Another difference between Collaborative Practice (“CP”) and litigation is the way information is viewed and used.  Because CP is not adversarial or positional, lawyers do not have to worry about hiding or minimizing the importance of harmful information or highlighting or over-emphasizing favorable information as they would in litigation.  Remember, we are not in a winner vs. loser model in Collaborative Practice; we are in an interest-based or principled negotiation model (think Roger Fischer’s “Getting to Yes”), which will hopefully produce a win-win (think Stephen Covey’s “Seven Habits of Highly Effective People”) outcome. The more we all know about what we’re trying to do, the better it is. Read the rest of this entry »