Archive for the ‘Business’ Category
How would Collaborative Law determine money damages issues?
January 20th, 2012 | 
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Two parties find themselves in a discrimination case and they do not want to litigate it; they want to resolve it out of court. But clearly one of the interests – often a primary interest – is determining the appropriate measure of money damages to be paid to the person who was allegedly discriminated against.
If you went to court, this would be decided by a judge or jury after hearing testimony and considering documented evidence, after a year or two or more of litigation process. If you chose arbitration, the arbitrator would make a binding and un-appealable decision after considering the applicable law and the relevant evidence and testimony presented. If you mediated the matter, a mediator would either be evaluative in his approach and offer information from cases with similar circumstances and help parties reach a number they feel is fair, or use a shuttle diplomacy style, going back and forth between the parties in separate rooms and in confidence.
The shuttle mediator will basically chisel away at the gap between the parties’ number until they reach a “yes” number. Every so often he will forcefully or subtly remind the parties that if they don’t settle, they will incur the extra expenses that come with continuing the litigation and eventually trying the case. He will also test the risk aversion levels of the parties by reminding them that juries are very unpredictable and uncertain and the parties really don’t how a jury might decide. He will compare the certainty of a number they agree upon through mediation with the unknown of a potential runaway jury that could either come back with a defense verdict or award a huge amount of damages. He will stress that that decision is then out of their control, and could then get appealed. Read the rest of this entry »
Is it, or are we, really that important?
The other day I was in the men’s bathroom. I couldn’t help but notice that the guy standing next to me was holding up his phone and texting someone. On another occasion I had seen the same guy in the bathroom holding up and reading a document while standing there.
We often notice things about people and their cell phones, which have now become a body part for many. Texting under the table during a meeting, texting while driving, texting while at the Red Sox game, checking messages while out to dinner, and my personal favorite - a man and a women out to dinner and both of them texting and/or talking on their phones and not saying more than a sentence or two to each other.
I wonder if we ask ourselves: What is so important about the message on the cell that we feel so compelled to answer right now, even when we are doing something else that should be calling for our attention? I can pretty much guarantee that in more than 90% of these instances that we are on our cells when we’re supposed to be doing something else, whatever it is we are texting or talking about can definitely wait until we finish going to the bathroom, arrive at our destination (or at least until we pull over somewhere), until the meeting has finished, the ball game is over or our dinner date has ended. The truth is, unless it’s a real health or safety emergency, there is no 24/7 urgency.
If a person spent the lion’s share of the time on his or her cell while out to a meal with me, it would likely be the last meal we’d be sharing. And I’m not sure I’d feel good about getting billed for my advisor’s time if I knew that he was doing that which he is billing for while going to the bathroom, or at another meeting (which I’m thinking he is also billing someone else for). Read the rest of this entry »
Another situation calling for Collaborative Law
Last week, while working essentially in a role of settlement counsel in a business transaction dispute, I came across another situation that highlighted the value of using Collaborative Law (“CL”). Unfortunately, this case was already in litigation, and has already crossed state lines via a change of venue motion which was granted.
But the good news is that the parties recognize that it would be in everyone’s interests to resolve this case early, rather than sink a lot of time and money into its litigation. There are a couple of legal issues which may either need a judge to ultimately decide them, or may at some appropriate point be handled by the parties with the help of a good mediator.
The question which has come up though, as it often does, is that of determining the right time to utilize the vehicle of mediation to help resolve disputes. Too early and the parties don’t have enough factual information to be able to assess the situation; the lawyers don’t have enough information to be able to wisely advise their clients in the mediated negotiations. Too late and the parties lose out on some of the primary benefits of mediation - saving money, saving time, avoiding the draining of human and emotional resources and damaging relationships.
Once the discovery process begins in a case, it tends to take on a life of its own. There is no mechanism in the litigation process to be able to stop when you have gathered all the relevant information you need and go into negotiation mode. It is also difficult for lawyers to make the strategic, mental and emotional shift mid-case from a gladiator fighting an adversarial win-lose war to negotiator looking for solutions that satisfy the interests of both parties, and facilitate enough of a win-win to reach resolution.
Employees, Employers and the MCAD; “We” are not “Them”
(Third in a series on the workplace)
Last week I had the opportunity to hear a brief presentation by Julian Tynes, the newly appointed Chairman and Commissioner of the Massachusetts Commission Against Discrimination (MCAD), along with MCAD Commissioner Sunila Thomas-George and other members of the MCAD staff. Chairman Tynes was part of a panel at the 13th Annual Employment Law Conference, sponsored each year by Massachusetts Continuing Legal Education (MCLE) in Boston on December 10.
Commissioner Tynes’ purpose, along with that of his panel, was to update employment lawyers on recent developments, changes, procedures and recent discrimination case decisions at the MCAD. One initiative that resonated with me personally as a father and former custodial parent was the suggestion that the Massachusetts Maternity Leave Act be changed to become the Massachusetts Parental Leave Act, be gender neutral and give fathers the same right as mothers to take work leave to care for children.
But as a mediator and employment lawyer who represents both employers and employees, what struck me about the MCAD Chairman’s message were three things: His level of enthusiasm, passion and commitment that was reflected in his message, his taking time to set an example and first thank many of the MCAD staff who was present at the conference, and his view of the work that the MCAD and discrimination lawyers do as working together toward achieving a shared goal – that of eliminating discrimination from the workplace.
Posted in Business, Collaborative Law, Mediation | 
Tags: Collaborative Mediation, Dispute Resolution Resources, Employment Disputes, Mediation | 
1 Comment »
Why be proactive in our treatment of employees?
(second in a series and dialogue on the workplace)
Workplace bullying and harassment are emerging issues to be addressed by employers. Add the potentially larger problem of increased stress, decreased morale and diminished productivity of those employees who remain after layoffs, who are expected to carry the same load with less people, less experiential knowledge and less resources. Factor in a still sluggish economy and high unemployment, and we have a workplace perfect storm and a cresting wave of workplace discontent.
I think employers need to be proactive and act ahead of the law. Ignoring this rising crisis may result in a layer of liability and non-compliance resulting from new laws. Their efforts to run a business may be stymied by a mobilized work force or they may have to close down because they failed to navigate this storm effectively. This storm will stay in the workplace and be also strengthened by the changes in the workplace brought by information technology and Generation Y. This is not your father’s work environment anymore.
IDR or All-Star Baseball Arbitration…complete IDR or civil Collaborative Law
(Part two on Baseball Arbitration)
To respond to clients’ needs for a better fitting dispute resolution process than some of the established methods, we created a very fluid and flexible Integrated Dispute Resolution (IDR) process earlier this year. IDR allows us to tailor the process to the specific circumstances of each dispute and integrate the right elements from other processes like case evaluation, the use of coaches, consultants and neutral experts, to give the parties what they need for the best resolution.
We hadn’t thoroughly addressed the need for closure in the IDR process or when the parties through their efforts in Collaborative Law or early mediation still can’t resolve the dispute completely. Statistics show that parties only come up short about 10% of the time or less, when they use Collaborative Law (CL) or IDR. Nonetheless, clients at the beginning of the process are still concerned about closure and what happens if they don’t resolve the matter.
CL requires limited representation by attorneys; if the case does not resolve through CL, the lawyers cannot continue to represent the parties in subsequent litigation. In divorce or probate cases, this is not that much of a deterrent for parties as they typically don’t have long-standing relationships with their attorneys and the representation doesn’t require the lawyers to know their business well. But in civil business and employment cases, where clients often have ongoing and trusting relationships with their attorneys, this limited representation requirement is a potential obstacle to using the CL process. Having to teach a new attorney about the client’s business or workplace adds another layer of costs and calls on the client to replace his trusted counsel with someone new to handle the litigation.
Who’s going to pay for my Primary Care Lawyer?
In our last blog post, I suggested the good sense idea of having a primary care lawyer in one’s team of trusted advisors, as one would have a primary care physician, an accountant, a business or personal coach, and for some, a financial advisor. There are, as we discussed, many advantages to having trusted legal counsel on board, someone who knows your business and family circumstances well, knows your priorities and goals, your disposition and who can give you good preventive and proactive advice, before you decide which legal path to travel.
Some readers pointed out that while that would be practical and helpful, unlike a primary care physician, which is most often covered and included in one’s medical benefits and health insurance, legal counsel is not usually included among the benefits offered by companies. It’s an out of pocket cost to the user/client, one that many just can’t afford to include in their budgets.
That good point got me to thinking two thoughts:
1. Yes, it is a costly service to add trusted legal counsel to a person or family or small business budget, but in the long run, it will most likely save hundreds, if not thousands of dollars. It’s similar to paying a little more for organic food or fresh produce from small family farms as part of our preventive health approach to our bodies. My grandfather, one of the wisest men I ever knew, used to teach us that there were two places you should never cut costs: Food and shoes.
2. Maybe companies and employers should consider offering this benefit to employees, something small that the company may not need to buy insurance to cover. They should do it not only because it’s a good benefit to offer to their employees in trying to do right by them, but also because it’s probably going to be a cost savings to the company, for the very same, preventive, proactive reasons as it saves a person money. When people utilize preventive law and avoid litigation, they not only save money, but also save time, time that would be taken off from work to attend to the demands of litigation or bigger legal problems. People also avoid the stress and emotional drain, the sense of being worn down by a legal dispute, especially one that goes into litigation. These factors directly impact a person’s mental and emotional well-being and one’s productivity, energy level, focus and concentration in the workplace. The combined cost of time off and unproductive, distracted work from an employee who is preoccupied and consumed by litigation is significant and detrimental to the workplace.
