Dispute Settlement Counsel

Archive for February, 2010

Last week I attended a conference on Sustainability in Business, co-sponsored by the Boston College Leadership for Change program and the Sustainable Business Network of Greater Boston.  In a group discussion, I was asked this question:

“So what does the issue of sustainability have to do with lawyers and dispute resolution?

Good question.  We typically think of sustainability as it relates to protecting our environment, going green, conserving energy, avoiding pollution, etc.   One obvious intersection of dispute resolution and sustainability would be the conflicts that are inherent when you think about the different interests and stakeholders interacting on sustainability issues.  These matters would be better resolved by non-adversarial approaches that focus on satisfying interest, rather than fights between positions and rights.

But there’s another intersection.  Shouldn’t the consideration of sustainability also extend to all resources, not just the natural ones?  The concept can also be applied to the inefficient use of time and funds, the misuse of human resources, and the draining of energies and emotions.  These can have a devastating impact on the sustainability of a business, an organization or a way of doing things.

I give a lot of thought to the way we resolve disputes, and the efficiency of the methods and approaches we use.  The more common approaches, particularly litigation and court intervention as we know it today, clearly are not sustainable.

Litigation cost too much, takes too long, carelessly misuses our human resources and is often damaging to our psyches.  One reason our courts cannot handle their caseloads is because of budget cuts and staffing reductions.  But a bigger reason, completely overlooked, is that we are asking our court system to do more than it should be doing.

Court and litigation should be our last resort, only turned to when other attempts to resolve disputes have failed, not the starting point.  If we utilized our courts that way, they would be sustainable.  But our legal system is built on an adversarial model, in which court has become the first stop – for filing a complaint or a petition – rather than the last resort.

Over 98% of the case filed in courts settle and never get tried!  This fact begs the question:  If the chance that our case will get to trial is less than 2%, then why are we going to the court to decide the matter?

In the language of the green community, why would you spend all your time, money, resources, systemic development, education and emotions pursuing oil, coal and fossil fuels if you knew that at the end of the day, you were going to use solar or wind energy?

When it comes to resolving disputes, people spend thousands of dollars, years of time, hundreds of man hours, immeasurable human energy and emotion, ruin good relationship and damage reputations by litigating.  Only at the end of that process do they then half-heartedly turn to a method they should have utilized from the very beginning of their dispute.  And after all that waste and abuse, the process they just put themselves through is one they swear they will never go through again and the result is almost always one with which they are dissatisfied.

Sustainable models for resolving problems exist.  One such model is Integrated Dispute Resolution (IDR).

What do speed limits and dispute resolution processes have in common?

They have to be right for the situation.

I was driving on the Mass. Pike this week, thinking about the idea of one speed limit for everyone.  Speed limits are established for the masses; a good average speed is set that is reasonable.  On the Mass. Pike for example, the posted speed is either 65 mph or 55 mph.

For excellent drivers under good driving conditions – light traffic, good visibility, dry road surface, 65 mph is probably too slow.  For drivers that have diminished reflexes, skills, sight or attention span, 65 mph is likely too fast.

Several external factors impact what is a good speed: Tire tread, engine responsiveness, things dangling or pasted onto windows that impact visibility, weather conditions, traffic volume, road surface, what else the driver is doing: texting, keying in numbers on a phone or destination on a GPS, deeply engrossed in conversations or thought, eating, putting on makeup, reading something, drunk, high on drugs, really agitated, reaching into the back for something, etc.

The right speed depends more on the situation and the circumstances than the posted speed limit.  The same is true for how we approach resolving disputes. One speed, one process, one approach, does not fit every situation.

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