Dispute Settlement Counsel

Archive for the ‘Collaborative Processes’ Category

What do speed limits and dispute resolution processes have in common?

They have to be right for the situation.

I was driving on the Mass. Pike this week, thinking about the idea of one speed limit for everyone.  Speed limits are established for the masses; a good average speed is set that is reasonable.  On the Mass. Pike for example, the posted speed is either 65 mph or 55 mph.

For excellent drivers under good driving conditions – light traffic, good visibility, dry road surface, 65 mph is probably too slow.  For drivers that have diminished reflexes, skills, sight or attention span, 65 mph is likely too fast.

Several external factors impact what is a good speed: Tire tread, engine responsiveness, things dangling or pasted onto windows that impact visibility, weather conditions, traffic volume, road surface, what else the driver is doing: texting, keying in numbers on a phone or destination on a GPS, deeply engrossed in conversations or thought, eating, putting on makeup, reading something, drunk, high on drugs, really agitated, reaching into the back for something, etc.

The right speed depends more on the situation and the circumstances than the posted speed limit.  The same is true for how we approach resolving disputes. One speed, one process, one approach, does not fit every situation.

Read the rest of this entry »

Mediation and Collaborative Law are two methods that are moving steadily toward the forefront of dispute resolution.  With this heightened interest in early intervention and avoiding litigation, the question that gets increasingly asked is this: What is the difference between Collaborative Law and mediation?  There are several key differences.

First is the timing of their use.  While parties would greatly benefit by using mediation earlier, before they file a lawsuit or early on in the litigation, parties usually turn to mediation too late, after discovery is completed, and often just before the trial.  By then, the parties have already spent lots of time and money and have suffered the collateral damage of litigation.  They are more adversarial then they were at the outset, and often only turning to mediation to avoid the uncertainties of putting their fate in the hands of a jury or judge.  The costs have taken their toll, too much time has passed and their relationships have been damaged or destroyed.

Collaborative Law, on the other hand, is designed as early intervention, to be used instead of and before turning to litigation.  Its focus is only on resolution and settlement by intention.  Because of this, the parties will typically save money, save time, avoid the collateral damage of litigation and still keep the decision-making in their control.

Read the rest of this entry »

Whenever I suggest the use of an Ombuds person (also referred to as an “Ombuds” or an “Ombudsman”) as a key component in the business strategy of being proactive and taking steps to prevent disputes from arising, I get the question:  What is an ombuds? What does an Ombuds person do?

An ombuds is a neutral, independent and confidential resource person that a company or an organization hires to help it solve problems – small ones as well as big ones – early on, before they escalate into bigger problems or disputes.  An Ombuds is usually someone who is either trained and/or talented as a trusted counselor/intermediary/facilitator.   An Ombuds is a part of the process of identifying and solving the problem early on, and plays an important role in helping to solve it.  The Ombuds may not be the one that solves it, as much as being the person who puts the wheels of solution into motion.

The most important skill that the Ombuds needs to have is the talent of active and empathetic listening.  That is a talent that is highly underrated and often overlooked in the business or organizational world.  But it is critical, and is greatly appreciated by those who benefit from the efforts of a good listener.

Equally vital is the talent for having the insight and resourcefulness to identify the essence of the problem and know which way to direct people’s actions, and what resources to bring to bear to solve it.  You might call an Ombuds a problem solving architect or engineer, a person with a knack for dissecting the problem, seeing what needs to be done to solve it, and setting things in motion in a neutral way, all the while respecting the confidentiality of the situation. Read the rest of this entry »

I had a job interview this week.  It was not my dream job, but it was a paying job, which is enough to cause this third-year law student to pay attention.  The interviewer wanted to discuss my experience with alternative dispute resolution (“ADR”).  I am earning a Certificate of Dispute Resolution in addition to my JD. I also intern with the Massachusetts Collaborative Law Council, so I have some interest with various forms of ADR. 

As I enthusiastically explained my viewpoint on the strengths of mediation and other ADR processes and why I think they are advantageous to clients, he interrupted me with a knowing smile and said condescendingly, “Yes, but I like going to court.”  He then went on to explain the thrill he gets from the entire litigation process…and I zoned out.

Read the rest of this entry »

Business disputes, especially those involving small closely held or family businesses, almost always include relationships that are ongoing and need to be preserved, and often arise out of issues and unmet interests and needs that lie beneath the surface of the stated positions. 

For these reasons and others set out below, Collaborative Law and other non-adversarial approaches designed to resolve business dispute early have been providing value to parties who have used these methods to solve their disputes.  In addition to the need to keep business relationships healthy, there are other practical reasons that favor the use of a collaborative process and approach: cost and time efficiency, confidentiality, and the ability for the parties to determine their own options for resolution.  For family businesses, mission-based, non-profit organizations, entrepreneurial and social enterprise businesses, the cost, time spent and collateral damage of the litigation process would be devastating to their business goals, operations and budgets.  Collaborative process approaches have delivered good results.  

Read the rest of this entry »

Recently I presented on various aspects of civil collaborative practice at the Global Collaborative Law Council’s Symposium (Dallas Sept. 2009) and the International Academy of Collaborative Professionals Forum (Minneapolis Oct. 09).  One constant observation, in these two instances as well as others, is that people want to see and hear how the collaborative law approach can be used in actual civil disputes.  It’s one thing to teach about the idea and the process, but it becomes concrete when people can see how it works.

The next few blog posts are going to briefly summarize how the collaborative law processes can be utilized in resolving different civil disputes.  They draw from real cases and real situations.  Since they are all confidential settlement processes and agreements, I cannot reveal names or specific details.  What can be share is what was accomplished, how it worked, how long the process took to “get to yes” and the approximate legal costs.

Let’s look at a sexual harassment case in which the parties agree to utilize a collaborative dispute resolution approach.  In this case, both sides were represented by counsel; I represented the female employee; a large firm represented the non-profit employer.  Although the other lawyer wasn’t trained in collaborative law, both sides and counsel saw the immediate need and value of a collaborative approach, rather than the alternative of litigation.  Right away, the facts present two very good reasons to use a non-adversarial, confidential dispute resolution process.  Imagine the damage to reputation and funding sources if a case like this goes into a public litigation process, and the emotional trauma the employee will go through? 

It was helpful for the parties to separate the people involved and diffuse the workplace while the case was negotiated.  A collaborative approach allowed us to agree to have the employee work off site during this time.  This met an important need of the employer — relieving the tension and potential for polarization of the workplace – and a need of the employee to be protected from that tense environment.

One interest the employee had was that steps be taken so this kind of thing doesn’t happen to another.  That interest was addressed by a commitment by the employer to conduct regular sexual harassment prevention training for the entire organization. 

Another interest was some acknowledgement of what happened and a sincere expression of remorse by the employer.  That was accomplished in the settlement.  The employee needed another job.  The employer was willing – beyond the usual placement services – to use resources it had to help find subsequent employment for the employee.  That was part of the settlement discussion. 

The time it took from the initial letter from me to the employer’s counsel to resolution was about four months.  Settlement included the above elements and a monetary settlement amount.  Litigation would have likely taken 3 to 4 years.   It’s a bit speculative to estimate what the legal costs would have been had this been litigated, but it is fair to estimate that the legal fees for the employer were probably 20-25% of what they would have been in litigation. 

The collaborative approach taken by the parties and their counsel allowed for creative options for resolution, satisfied their interests, saved them time, money and collateral damage.  The advantages over an adversarial process like litigation or arbitration are more than evident.

Many types of disputes can be resolved with similar efficiency and results using the collaborative law approach.  Should you find yourself in a dispute, think about this comparison.

My wife and I just returned from a vacation visiting our National Parks in Utah and Arizona – Zion, Bryce, Arches, Natural Bridges and the North Rim and South Rim of the Grand Canyon.  It was an incredible, humbling trip.

One reason for going to Utah was to visit Arches National Park and see in person the arches that inspired us to use them in our promotion materials.  Let’s take a few minutes to consider these magnificent Arches, and in particular, Delicate Arch and Broken Arch.

One thing that our National Parks do right away is to make us realize how small and insignificant we are compared to the wonders of nature and God’s majestic creation.  We think in terms of weeks, months, years and a lifetime.  But out in the National Parks, the measure of time is thousands and millions of years.  There are over 2,000 arches in Arches Park, all naturally made over millions of years from the elements – wind, gravity and erosion, out of various types of stone – largely sandstone.  When you stand beneath Delicate Arch or the equally impressive Landscape Arch, you get a sense of the scale we’re talking about.  Words and pictures do little to describe what can only be experienced to get a fuller comprehension of these formations of terra cotta stone.

Broken Arch, located at South Devils Garden, Arches National Park, Utah

Read the rest of this entry »