Dispute Settlement Counsel

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).

Ironically, this traditional argument that it is important that exchanging information occurs before mediation can take place is a great argument in support of Collaborative Law, which includes and mandates in its structure the open exchange of all relevant information. It is one advantage of Collaborative Law over mediation.

But one advantage of mediation is obvious: The presence and participation of a neutral facilitator trained to work with parties to reach resolution. Over the last year or so, the trend in Collaborative Practice is to include in the process a neutral facilitator; depending on the nature of the case, that may be an organizational coach, a communications consultant, a diversity expert, a mental health provider or a mediator.

The recognition of these two factors above has led us to the organic creation of a wonderful hybrid process – Collaborative Mediation. This is the best of all worlds. It includes the neutral facilitator early on in the dispute resolution process and it provides a mechanism for the exchange of all relevant information. It channels the use of the information to be more positive – used productively to develop options for settlement rather than used to beat the other side.

Mediators will love this method because they know they are working with lawyers who are trained in interest-based or principled negotiation (think “Getting to Yes”), which is the same training the mediator has. (Most Collaboratively trained lawyers are also trained and certified as mediators, so they are speaking the same non-adversarial, settlement-by-design language.) It allows the mediator to work in the more facilitative or transformative style, rather than just be limited to a role of evaluative, shuttle diplomacy. And it gets the mediator involved before relationships have been adversely impacted and before the parties are entrenched in their positions.

Clients will love it because each client has the benefit of both their collaborative lawyer, a conflict resolution advocate, representing them and protecting their interests, as well as a neutral facilitator who is working with both sides to develop the best possible settlement.

Collaborative lawyers love this because it provides the process with a resource who is dedicated to facilitating the settlement process, which is helpful to them in focusing on their role as settlement advocate for their respective clients. It’s a classic win-win-win!

Collaborative mediation is the gold standard for dispute resolution. It provides the best environment and the necessary resources for the most creative, efficient and – should the situation and parties seek it — transformative dispute resolution.

Next time: When and how can a mediation be transformative?