Dispute Settlement Counsel

Archive for the ‘Case Evaluation’ Category

(second in a series)

Last blog post (Why aren’t more people using CL?), we noted that people in disputes often overlook a very important consideration:  how information is exchanged.  It is one of three critical questions when it comes to resolving disputes:

1. Are the parties willing to focus on resolution by intention and design and not go to court?
2. What is the most efficient process (the best fit) for your particular dispute situation?

So how do parties handle the exchange of relevant information?  Old school dispute resolution, via litigation, was the “hide the ball” approach, by which parties try to hide or minimize that information that hurts your position and hope the other side doesn’t find it.  At the same time, parties often exaggerate and shine the spotlight early and often on that information that supports their positions. Read the rest of this entry »

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 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 »

Have you ever thought negatively about a person or a situation based on information you thought was accurate but which turned out to be wrong?  I remember thinking certain things about another guy I went to school with and for over two years, I didn’t talk much with him except to be polite and civil.  Something triggered an opportunity for him and me to go out for beers or coffee and just talk about things that bothered us about each other.  It turned out both of our beliefs about each other were misconceptions, based on perceptions and assumptions we had never checked out until then.  We became the closest of friends and still are today.

This kind of thing happened over the weekend in my church.  There was some missed communications between people and some of the parishioners started to run with that, believing that what they perceived as a change in plans was orchestrated by what they believed to be a small but controlling group of parishioners.  Not being a big fan of small controlling groups in any organization, let alone in a church, I could relate to this view. But then I learned that one group perceived that I was a part of the small controlling group.  It dawned on me at that moment that the person or persons carrying that perception didn’t really know me very well.

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I’ve been looking at baseball arbitration lately to consider including it in the dispute resolution services we offer at the Zeytoonian Center.   Upon further review, it should be added to our DR spectrum.  It is a great complement as an option for closure in some of the other processes, like IDR and civil Collaborative Law.

In fact, civil Collaborative Law’s response to the addition of baseball arbitration as a closure option to its process may soon echo the memorable, if a bit sappy, quote of Jerry Maguire:  “You complete me.”  But we’ll come back to that in the next blog post.

We’ve made it a point at the Zeytoonian Center to exclude arbitration from what we do, in contrast to most ADR providers for whom arbitration is a major offering.  Our reason for excluding arbitration is clear:  It’s not consistent with one of our core philosophies: the “sovereignty of the client”.  In all our processes and work, the clients make the ultimate decisions on how the dispute will be resolved.  Our clients have direct input into the process used, the pace of the process and in determining the options for resolution.  We don’t determine the resolution – our clients do.  We advise them, we are their advocates, guide them through efficient processes and help them reach good settlements.

Arbitration does not leave the determination, or for that matter the process, to the parties.  The arbitrator makes those decisions.  The only input the parties have in typical arbitration is to choose the arbitrator. Since most arbitration is binding, they don’t even have the chance to appeal the arbitrator’s decision if it is wrong on the facts or the law.  Parties in arbitration completely abdicate their sovereignty and control.  That is why it’s not included in what we do here.

We also don’t include arbitration because it has become too much like litigation in many cases.  It’s no longer streamlined and efficient.  It often includes discovery, motion practice, hearings, presenting evidence, witnesses, briefs or memoranda of law.  Arbitrations that stretch out over a year or more are not unheard of.  Some lawyers have observed that arbitration is pretty much like litigation except that the parties pick (and pay for) the judge and suggest that it should no longer be included in the ADR spectrum.  Like litigation, it’s not a sustainable process.

We believe the parties in the dispute should ultimately decide how it gets resolved.  They should select the right process, with our guidance and recommendations, and should make the final decisions about what the resolution will look like.  Dispute resolution needs to be efficient in time and cost, needs to preserve important relationships and not drain the resources and emotions of the parties.  The process should and can be agile and creative enough to come up with solutions that really fit the needs and meet the interests of the parties.

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I’m often asked how case evaluation is used to resolve a dispute.  The best way to explain is to tell about a case that was resolved using a case evaluator/mediator.

One important prerequisite is that the parties to the dispute – and their lawyers — have to want to resolve the matter quickly and approach it like a problem to solve, not a fight over who is right.  This is sometimes driven by the nature of the case, or by the ability of both parties to see that their interests are not best met by prolonged, expensive and cumbersome litigation.

In this homeowner-contractor dispute, both parties needed to get the issues about payment and continued or discontinued work resolved quickly.  The homeowners’ family life was being disrupted the longer the dispute remained unresolved and the contractor’s ability to earn more money and deploy his resources effectively hung in the balance.   Both lawyers realized that neither client would benefit by the costs and length of litigation, and the matter was not a clear cut case in which one side was clearly right.

I suggested the use of a neutral case evaluator, a lawyer very well versed in construction cases, both with respect to the relevant facts to focus on as well as the state of the law as to these kinds of disputes.  To his credit, my counterpart counsel agreed to put any litigation on hold and we were both able to persuade our clients to try this approach.  There was one procedural snag:  the contractor had put a mechanic’s lien on the house and needed to file a complaint within 90 days to prefect the lien.  We agreed to allow the contractor to file the complaint in order to preserve his right to the lien, and then there would be a standstill agreement and a hold on the litigation to allow time to work with the case evaluator.

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