Dispute Settlement Counsel

Archive for the ‘Collaborative Law’ Category

Lately some of us lawyers who use Collaborative Law (“CL”) in civil disputes other than divorce cases have been brainstorming about the expanded use of CL in employment, business, probate, construction and other areas of law.  In the spirit of transparency that is an important element of CL, we’ve focused on why more people don’t use CL to resolve their business or employment or other civil disputes. 

We know that CL is an efficient and agile process and is ideal for many disputes, especially those in which preserving relationships is important.  We also know that it is not the best process for every dispute.  For some cases, mediation may be better; for others arbitration and for still others, litigation.  For many disputes, often a hybrid approach works best, which may utilize some of the principles and techniques of CL, but not all of the elements of the widely accepted CL process model. 

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Part II (Part I on June 18, 2011)

In our last blog, we began the discussion of what ADR is and why people are steadily asking their lawyers to use processes like mediation and collaborative law.  We talked about arbitration becoming more and more like litigation.  We discussed how the economy, the influence of information technology and a better informed public all contribute to a shift away from the long, expensive and cumbersome litigation process to more sustainable models of dispute resolution.

This shift is forcing lawyers to change the way they serve their clients.  It is also pushing more lawyers toward training in mediation and collaborative law and adding these methods to their toolbox.  Clients, better informed and more empowered, are seeking out these processes that were the “alternatives” to litigation.  More and more, mediation, collaborative law and conciliation are the first choices and the “primary” ways to resolving conflict, while arbitration and court-based litigation are gradually becoming the alternatives that parties default to if they cannot resolve their dispute through the non-adversarial approaches.

In Australia, the legal community has already changed the references to reflect the growing demand for these more efficient methods.  Australia now uses the phrase “Primary Dispute Resolution”, or “PDR” to refer to mediation, collaborative law and conciliation, and uses the older term ADR to refer to either litigation or arbitration or the entire spectrum of dispute resolution approaches.  This same change has been encouraged in other places around the world. Read the rest of this entry »

Part 1 of 2 parts on PDR

In the language of the people, what we do at the Zeytoonian Center is work with people to resolve their disputes without going to court and without engaging in a process known as litigation.  We use different approaches like mediation, collaborative law, conciliation, case evaluation and our own Integrated Dispute Resolution (“IDR”) to help people solve their problem and we tailor that approach to the specific situation and circumstances of the people in that particular dispute.

In our materials and writings and presentations we make, you’ll hear three different acronyms thrown around:  “ADR”, “IDR” and a new one that we are going to start using now which will take the place of ADR, “PDR”.   Lay people get annoyed when lawyers talk in legal jargon, and rightly so, so I want to use these next two blog posts to explain what each one is, what each one means, and then ask you to join us in changing their meaning to reflect your interests and replace ADR with PDR.  We’ll explain what PDR is in the next blog.  We’ll save IDR for another blog post.

ADR stands for alternative dispute resolution.  ADR has included processes like mediation, arbitration, collaborative law, conciliation, etc.  Historically, lawyers have viewed ADR as the alternative to litigation.  As such, litigation has been the process of choice for lawyers.  In some instances, usually because it’s stated in the terms of a contract, businesses will use arbitration instead of the courts. Read the rest of this entry »

What if your entire town made an official commitment to practicing legal wellness, for one year?  Or for that matter, your entire company?  Or your mission-based organization?  Or your family?

A couple of years ago I read an article in AARP Magazine about how Albert Lea, a small town of 18,000 in Minnesota, launched the AARP/Blue Zones Vitality Project.  The town made a commitment for one year to making changes in the way their residents ate, exercised, worked and played.  The guiding principle for the Blue Zones Project is to commit to four traits:  healthier diet, active lifestyle, clear sense of purpose and strong social networks.  A year later, when they went back to Albert Lea to see how things went, they saw that people wanted to keep it going and did just that.  The residents had logged 42,000 miles of walking, up from 37,558 logged a year earlier.  One resident noted that in one year, he increased his life expectancy from 52 years to 78 years. He noted that the project improved both his habits and his happiness.  Five months into the project, participating residents had lost an average of 3 pounds each and had added three years each to their life spans.

Now, take that same concept – a commitment of an entire town to practicing health wellness – but apply it to legal wellness.  For one year, what if town officials agreed that if there were any kind of municipal disputes, neither side would sue or go to court. Instead, participants committed to a pilot project in which they would act differently when they found themselves in disputes.  They agreed to first work together toward resolving it utilizing only non-adversarial dispute resolution processes.  The residents agreed also to commit to take any dispute they had to a designated center in the town or at the worksite, where, working with people trained in non-adversarial and interest-based dispute resolution, the parties worked through their issues together, through a series of negotiation sessions, guided by those trained to facilitate this kind of problem solving.  They also hired an ombudsperson to work discreetly, neutrally and confidentially with people having conflicts or problems in the workplace, in community organizations or in their families to diffuse them.  They utilized several preventive steps, training and educating.  They put policies and procedures in place to prevent certain disputes from occurring.  They put into their contracts dispute resolution clauses by which the parties agreed to try non-adversarial dispute resolution processes first, processes in which they controlled the outcome. Read the rest of this entry »

This is always a time of year that my creative juices get churning and a time that there’s so much going on beneath the surface.  This week is no different.  It’s funny that St. Patrick’s Day almost always occurs during Lent, a convergence of one of the most visible expressions of Irish culture and tradition with one of the core disciplinary practices of Christian spirituality.

Being a little bit Irish and a little more Armenian, it’s also a time when my minority vote trumps the majority vote in my internal ethnic co-existence and eating corned beef and cabbage is allowed as an exception to the traditional meat fast during the forty days of Lent.  My Irish and my Armenian ethos, both deeply aligned with the underdogs in life, celebrate a minority victory.  Both the Irish and the Armenian in me smile; each acknowledging the gift of the other, each eager to share something with the other and both always appreciating the value of a good meal and a good time around the hearth. Read the rest of this entry »

Does the way a dispute gets resolved – either through a negotiated out of court settlement process or through a verdict or finding of a court — impact the level of compliance with the terms of the resolution?  Put differently, are people more or less likely to carry out the terms of the final resolution when it is the result of a process like mediation or collaborative law or other non-adversarial processes?

One answer was recently provided in an article by Lorig Charkoudian in the Winter, 2010 issue of the Conflict Resolution Quarterly, addressing the issue of what happens after negotiated settlements.   We know from studies, literature and statistics that there is a high rate of successful resolution in mediated cases, just as there is a high rate of satisfaction with the mediation process.  But Charkoudian’s articles focuses on the rate of compliance with the terms of a negotiated agreement, compared with court resolved cases.

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It’s great that there are now two new shows which focus on mediation as an alternative to the court process.  One is Fairly Legal (Thursday at 10 pm EST on USA Network); the other is Harry’s Law (Mondays at 10 pm EST on NBC).

Fairly Legal’s premise is the use of mediation to resolve disputes rather than going to court and fighting through a litigation process.  The lead character, Kate Reed, is a lawyer who walked away from the litigation side of the profession to become a mediator.

Episodes I’ve watched have portrayed employment, intellectual property, divorce and criminal cases resolved by the creative intervention of the mediator.  At the end of the February 24 episode, Kate gave a presentation to a room full of lawyers on the advantages of mediation over court-based litigation, making the case we have been making -  it saves time, saves money, saves relationships, can be more creative in coming up with good solutions and is confidential.

Harry’s Law is a law show with a twist.  The lead lawyer, played by Kathy Bates, runs her law practice out of a shoe store.  This resonates with me because I can envision combining a dispute resolution practice with a breakfast and lunch restaurant – my ultimate goal.

The February 21 episode was on point for two reasons:  It presented two cases, one showing in a compelling way how mediation can be used effectively to resolve a neighborhood gang dispute and the other showing in an equally compelling way how a court-determined verdict fell so short of solving the problem in an employment dispute.

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