Dispute Settlement Counsel

Photo credit: John Drysdale

A paradigm change is underway in the way legal services for resolving disputes are provided to clients, even though sometimes the movement feels so slow you can’t see or feel the change. The old traditional way of resolving disputes by suing, going to court and getting involved in years of expensive litigation is giving way to newer, more streamlined approaches designed to achieve faster, less expensive and more lasting resolution. The new approaches also minimize the bad by-products of contentious litigation: damage to relationships, reputations damage to business or family, and the draining of resources, energies and emotions.

Mediation has steadily become the vehicle of choice for parties who wish to avoid the warfare and adversarial process of litigation. Parties are no longer so willing to just hand over the decision making as well as control of the process to the lawyers, judges and juries. As the paradigm shift continues, the question will not be whether to use mediation and/or other non-adversarial method of dispute resolution like Collaborative Law, but rather how early in the process should the parties turn to these approaches.

But with change comes resistance, lack of understanding and lack of security, even if people know that what they have been doing isn’t working very well. The parties and lawyers know that the new playing fields of conflict resolution advocacy make sense and is logical, but change still is difficult.

In their new and enlightening book Switch, Chip and Dan Heath, who also authored Made to Stick, and who write a great column in Fast Company magazine, shed light on how to best effectuate difficult change. They note that even when you have persuaded “the Rider” (the practical thinker and thinking part of us), the more difficult task is to get “the Elephant” (our feelings and emotions) to accept the change. And the Elephant is always stronger than the Rider!

One suggestion the Heath brothers make is to “shrink the change”. One shrinks the change by breaking it down into smaller elements and working to change each smaller, more concrete element. People are more likely to be willing to accept smaller changes and are more likely to work to achieve attainable goals than they are willing to accept sweeping changes. This is even true in the legal profession, which is slow to change, rooted in tradition and precedent and conservative by nature.

Changing from litigating to using mediation or Collaborative Law is a major shift for the Elephant. The Rider understands that these new approaches make so much sense. Yet even though it is illogical to spend time, money and energies preparing for something (trial) when we know that 98% of the cases filed in courts end up settling and never going to trial, the Elephant still hesitates to abandon the familiar idea and process of court intervention. But most Elephants can readily accept changing some of the elements of our new approaches.

For instance, most parties and lawyers are willing to put the litigation approach on the back burner and refrain from any filing a complaint for 6 months. The option of going the litigation hasn’t been abandoned, just put on the shelf for a while to let us try something else first.

A good amount of parties and lawyers are willing to have one or more four way (parties and lawyers together at the table) negotiation meetings and discuss openly but confidentially their respective interests and needs.

Most clients would prefer to use a more efficient information exchange process instead of a long and expensive process of discovery demands, responses, depositions, motions, challenges, etc.

Here’s another element that makes sense and resonates with clients: Rather than both sides hiring their own expert witness, they agree to jointly hire one expert who works as an independent resource, offering advice and guidance to both parties in a neutral way. The expert is a valuable asset for both sides and to the process of resolution and his/her cost is shared equally by both parties. So the change is for the parties to agree to get double the value of the expert’s information at half the cost.

Proposing each of these elements of non-adversarial dispute resolution shrinks the change. Each piece, standing alone or pieced together by the clients and lawyers together to form what we call an Integrated Dispute Resolution (IDR4), is easier to accept.

The paradigm shift to mediation, Collaborative Law and Integrated Dispute Resolution is being driven by the economy, by the advances in information technology, by the shift in business from old corporate models to new entrepreneurial approaches like social enterprises, sustainable and green business and by the forces of nature. We can’t stop the river, but we can help navigate it in a more logical and manageable way. One way to start doing that is by shrinking the change.