Dispute Settlement Counsel

Recently I presented on various aspects of civil collaborative practice at the Global Collaborative Law Council’s Symposium (Dallas Sept. 2009) and the International Academy of Collaborative Professionals Forum (Minneapolis Oct. 09).  One constant observation, in these two instances as well as others, is that people want to see and hear how the collaborative law approach can be used in actual civil disputes.  It’s one thing to teach about the idea and the process, but it becomes concrete when people can see how it works.

The next few blog posts are going to briefly summarize how the collaborative law processes can be utilized in resolving different civil disputes.  They draw from real cases and real situations.  Since they are all confidential settlement processes and agreements, I cannot reveal names or specific details.  What can be share is what was accomplished, how it worked, how long the process took to “get to yes” and the approximate legal costs.

Let’s look at a sexual harassment case in which the parties agree to utilize a collaborative dispute resolution approach.  In this case, both sides were represented by counsel; I represented the female employee; a large firm represented the non-profit employer.  Although the other lawyer wasn’t trained in collaborative law, both sides and counsel saw the immediate need and value of a collaborative approach, rather than the alternative of litigation.  Right away, the facts present two very good reasons to use a non-adversarial, confidential dispute resolution process.  Imagine the damage to reputation and funding sources if a case like this goes into a public litigation process, and the emotional trauma the employee will go through? 

It was helpful for the parties to separate the people involved and diffuse the workplace while the case was negotiated.  A collaborative approach allowed us to agree to have the employee work off site during this time.  This met an important need of the employer — relieving the tension and potential for polarization of the workplace – and a need of the employee to be protected from that tense environment.

One interest the employee had was that steps be taken so this kind of thing doesn’t happen to another.  That interest was addressed by a commitment by the employer to conduct regular sexual harassment prevention training for the entire organization. 

Another interest was some acknowledgement of what happened and a sincere expression of remorse by the employer.  That was accomplished in the settlement.  The employee needed another job.  The employer was willing – beyond the usual placement services – to use resources it had to help find subsequent employment for the employee.  That was part of the settlement discussion. 

The time it took from the initial letter from me to the employer’s counsel to resolution was about four months.  Settlement included the above elements and a monetary settlement amount.  Litigation would have likely taken 3 to 4 years.   It’s a bit speculative to estimate what the legal costs would have been had this been litigated, but it is fair to estimate that the legal fees for the employer were probably 20-25% of what they would have been in litigation. 

The collaborative approach taken by the parties and their counsel allowed for creative options for resolution, satisfied their interests, saved them time, money and collateral damage.  The advantages over an adversarial process like litigation or arbitration are more than evident.

Many types of disputes can be resolved with similar efficiency and results using the collaborative law approach.  Should you find yourself in a dispute, think about this comparison.