Dispute Settlement Counsel

You find yourself in a dispute, let’s say it’s a sexual harassment case and you are the employer and alleged wrongdoer. You don’t want to litigate this matter for lots of reasons: it’s too expensive; it would take too long; it would draw too many of your employees, including you, away from the business; it would give the company bad publicity; it would polarize your employees and pit them either for or against the alleged victim, and it would be emotionally draining for those involved. Add to that the facts that the alleged victim is a valued employee you don’t want to lose and you want to be seen in the workplace as an enlightened employer and a company people want to work for because they are treated well.

All good reasons why you don’t want to litigate this matter. Add to those one more: If you litigate, the process, the pace and timing and the outcome is out of your control and someone else – a government agency, a judge, an arbitrator or a jury – will decide the case.

You have heard about alternative dispute resolutions methods like mediation or collaborative law (CL), both of which offer you many of the advantages that litigation cannot offer you. But the one thing those methods don’t give you is closure: If the matter doesn’t get resolved by using CL or mediation, then you have to start over and go to court or an arbitrator, draining you of more time and more money. You want the control over the process and outcome and you want the privacy and confidentiality. You want a less expensive and more streamlined efficient process, one that achieves resolution in a few months or less, not a few years.

Not unusually, you want the best of both approaches. That’s natural. My wife and I wanted the disposition and look of a Yellow Lab, but not the shedding, so we adopted a hybrid. We wanted a car with all wheel drive but the ride and feel of a car, so we found a small SUV. We wanted the feel of a home, but not the upkeep and yard work, so we got a townhouse.

You get the idea, right? So why don’t we use the same thinking we apply in other things in life to dispute resolution? One reason is because we don’t know about the option of creating hybrid processes. We’re not hearing about hybrids from the providers of mediation services or from litigation law firms. A guy that is in the business of selling trucks is probably not going to tell you about Honda’s Crosstour or Subaru’s Outback.

But, if the legal services provider is listening carefully to what you want, or knows your business well and genuinely wants to satisfy your interests, he will get out beyond brand X or brand Y and offer you something that fits your needs. At our Center, we refer to this approach as IDR4 or Integrated Dispute Resolution. Here’s how it would work.
Clients’ needs: Control the process, timing and costs; strong legal advocacy; privacy; no litigation and closure.
Process Solution: a hybrid of Collaborative Law (CL), which satisfies the first three interests the client has, and one of two variations of what we are now going to name the “Collaborative Closer Option” or “CCO”.

The parties agree pursuant to a written process agreement to utilize CL and all its elements, working at resolution through CL’s interest-based negotiation sessions and use of shared neutral experts. They also agree in that same process agreement that if they don’t reach resolution through the CL process, then each party’s lawyer will submit a written proposal for resolution to a “Collaborative Closer” that is mutually chosen by the parties. The Closer, again based on the closure option preference of the parties, either chooses the proposal that he believes is the most appropriate solution (CCO1), or takes the best elements of the two proposals and crafts the “Closer’s Resolution” (CCO2). In CCO2, the Closer is limited to using only those elements and ideas that the parties have proposed and cannot go beyond them, but can integrate their best ideas. The parties have agreed, in that same process agreement, to accept the Closer’s resolution as their final agreement, which is reduced to writing.

Efficient, creative, agile, sustainable, progressive, proactive. This is the new face of dispute resolution.