Dispute Settlement Counsel

Archive for the ‘Collaborative Processes’ Category

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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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 »

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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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.

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(First in a Series & Dialogue)

Much of my work in preventive law and dispute resolution involves workplace situations and disputes.  I have many great business and non-profit clients and many individual clients who are employees.  I’ve never liked the idea of being pigeonholed as an “employer’s or management side” or “employee’s side” lawyer any more than I wanted to be labeled a plaintiff’s attorney or defense attorney.  Representing both sides has helped me counsel clients better as I understand the perspectives of both sides, along with the views of the other “stakeholders” in workplace issues – families, communities, subcontractors, lawmakers and the consumers of the business products and services involved in the dispute.

Many of my employer clients treat employees wonderfully, even in this challenging economy and an ever changing workplace.  But lately I have been hearing too many stories and fielding too many inquiries and phone calls that reflect an increasingly troubling trend – that of laying off people to cut costs and then expecting those who remain employed after the serious cutbacks to do much more to compensate for the work of those who were laid off.  Those that are left behind are increasingly overworked, under-appreciated, under-compensated and incredibly stressed out, given the extra burden they have assumed. Read the rest of this entry »

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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Have you thought about having a primary care lawyer (PCL) among your team of trusted advisors, the way you have a primary care physician, or financial advisor or accountant?

Most of us have a primary care physician (PCP), a trusted medical advisor, the first person we turn to when we have a medical situation, illness or injury.  Before you decide what approach to take, what kind of medical specialist you’ll need to see, you begin by going to your PCP and asking him/her to assess your situation.  Your PCP has the advantage of knowing you well, knowing your medical history and as a result, he/she is in a better position to assess your situation and give you tailored advice.  You also have the extra security of knowing and trusting your PCP.

If you are a small business or a family business, a non-profit organization, a social enterprise or entrepreneurial business, why not have the same kind of trusted advisor in your legal world?  There is great value to having a lawyer that knows your business well, that understands the goals and interest of your organization, knows how you think and approaches situations in a preventive, proactive way.

Let’s take that analogy to medicine one step further?  If you had a back problem, would your first call be to the orthopedic surgeon to start preparing for surgery?  Of course not.  Orthopedic surgeons, like trial lawyers, are masters at their craft.  I have the utmost respect for mine.  But he is my last call; not my first one.  There’s a time and a place for surgery and that is only when you have tried every other less-invasive, less risky, less life-altering approach or when nothing else will work.  Only when those efforts fail do you turn to the surgeon as a last resort.  Litigation should be looked at through the same lens: only as a last resort, when the other less damaging, less risky, and less intrusive procedures have been tried first.  You can always turn to the courts or an arbitrator if your non-adversarial, solutions-based efforts don’t succeed, or when your primary care lawyer advises you that in your circumstances, you need to litigate.  But it’s very difficult and very ineffective to try to switch to a non-adversarial, solutions-based approach after you have been embroiled in litigation for a couple of years and spend thousands of dollars. Read the rest of this entry »