Dispute Settlement Counsel

Archive for the ‘Mediation’ Category

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 »

You find yourself in a dispute, let’s say it’s a sexual harassment case and you are the employer and alleged wrongdoer. You don’t want to litigate this matter for lots of reasons: it’s too expensive; it would take too long; it would draw too many of your employees, including you, away from the business; it would give the company bad publicity; it would polarize your employees and pit them either for or against the alleged victim, and it would be emotionally draining for those involved. Add to that the facts that the alleged victim is a valued employee you don’t want to lose and you want to be seen in the workplace as an enlightened employer and a company people want to work for because they are treated well.

All good reasons why you don’t want to litigate this matter. Add to those one more: If you litigate, the process, the pace and timing and the outcome is out of your control and someone else – a government agency, a judge, an arbitrator or a jury – will decide the case.

You have heard about alternative dispute resolutions methods like mediation or collaborative law (CL), both of which offer you many of the advantages that litigation cannot offer you. But the one thing those methods don’t give you is closure: If the matter doesn’t get resolved by using CL or mediation, then you have to start over and go to court or an arbitrator, draining you of more time and more money. You want the control over the process and outcome and you want the privacy and confidentiality. You want a less expensive and more streamlined efficient process, one that achieves resolution in a few months or less, not a few years. Read the rest of this entry »

AP Photo

Over the last month or so, I’ve been struck by several situations in which one party to a conversation or discussion obviously was listening to what was being said, but it was equally obvious that the listener wasn’t really hearing what was being said.  I have a couple of theories for why, but it’s often because somewhere early on in the exercise of hearing, the listening party stops listening and starts formulating his response in his mind.  Once that happens, any chance of allowing what was heard to actually be thought about or to simmer in the listener’s mind for a few minutes or more is gone.  Dead on arrival.  What was heard was not at all processed and wasn’t thought about beyond what and how to respond.

This is even more true in online communications because we can’t observe the body language, hear the tone of voice or the speed of the words being spoken and the intonations of the speaker.  If the majority of communications is non-verbal, the online listener, reduced to reader, is already at a huge disadvantage in his ability to really hear and understand what is being conveyed to him.

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. 

Read the rest of this entry »

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 »

A dispute was swirling around a man and his followers who were promoting an alternative way of living, different from the norms of their time.  The man had just been betrayed by one of his insiders and the dispute was about to come to a head.  As authorities came to arrest him, a physical confrontation between sides broke out, but was quickly diffused by the man’s unconventional intervention between the parties.  Before it could escalate, the man not only stopped the fighting, but reached out and healed someone on the other side.

The confrontations in the Garden of Gethsemane offer a classic modeling of non-adversarial dispute resolution.  While rooted in Christian spirituality, the events have a universal message: It is possible for one to be zealous in holding his position or defending a right, continue to be an advocate for one view and stay the course with respect to pursuing one’s interests and goals, without taking up the fight.  And in the process, one may not only be able to treat those on the other side with respect, but do some healing. Read the rest of this entry »