Dispute Settlement Counsel

Archive for the ‘Mediation’ Category

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 »

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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The crisis of child abuse by priests of the Roman Catholic Church and the cover-ups by their bishops was the focus of a recent Time magazine cover story (June 7, 2010).  The story caught my interest for several reasons:  I am a committed Christian, an active member of the oldest national Christian church, the Armenian Orthodox Church, and a former seminarian who gave serious though to becoming a clergyman.  And my first job out of law school was prosecuting child abuse cases in Westchester (NY) County.

But also, I was interested in the story because I am a lawyer and mediator, dedicated to the non-adversarial resolution of dispute resolution.  I read the article with sadness, feeling compassion for the victims, but also for the Catholic Church dealing with a difficult issue and for the stakeholders – the faithful of the Catholic Church and all those other priests who have done no wrong, but have to live with the stigma of the wrongdoing that touches their ministries as well.

The article mentioned the two approaches that people are presently using to address this crisis:  either going through a long litigation path that begins with the state Attorney General’s office and is thereafter driven by private attorneys or an internal process within the hierarchy of the Church.  The first is tremendously draining and damaging to those victims who can even afford the legal fees; the second has failed to gain the trust and confidence of the people because it has often done little more than transfer or re-assign the suspected priests and keep the matter as quiet as possible. Read the rest of this entry »

Armando Galarraga, Pitcher for the Detroit Tigers

Armando Galarraga will likely never again pitch a perfect game as he did on June 2, 2010.  The law of averages doesn’t favor it, and no one has ever done it.  So in getting what should have been the final called out of a perfect game wrong, umpire Jim Joyce took away something that no amount of money could ever correct.  And even though there was overwhelming support in the sports world for the Commissioner of Baseball to turn a lose-lose situation into a win–win, overturn the ruling on the field and reinstate the perfect game, most of us also recognized that this particular commissioner lacked the courage to make that decision.

So how could this situation, a problem that needed to be solved, get fixed in a way that restored order, justice and peace in the baseball world, when there was no legal mechanism for doing so?  When the law cannot give you the solution the circumstances need, it reverts back to the people involved and spirit of making things right to take the situation into their hands, go outside of the box and turn typical into transformative.

That is exactly how this problem was fixed, by the graciousness by Mr. Galarraga, the act of apology by Mr. Joyce, and an act of collective acceptance and reinstatement by the community, represented the next day by the players and Detroit Tigers fans at the following game.

The next time some macho person suggests that apologies are for wimps, remind them of the more than perfect, perfect game of June 2, 2010.  Tell them that the one and only way that the situation could be corrected was by two grown men choosing to do the opposite of ego, and rise above ineffective position-taking responses of who is right and who is wrong.

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Photo credit: John Drysdale

A paradigm change is underway in the way legal services for resolving disputes are provided to clients, even though sometimes the movement feels so slow you can’t see or feel the change. The old traditional way of resolving disputes by suing, going to court and getting involved in years of expensive litigation is giving way to newer, more streamlined approaches designed to achieve faster, less expensive and more lasting resolution. The new approaches also minimize the bad by-products of contentious litigation: damage to relationships, reputations damage to business or family, and the draining of resources, energies and emotions.

Mediation has steadily become the vehicle of choice for parties who wish to avoid the warfare and adversarial process of litigation. Parties are no longer so willing to just hand over the decision making as well as control of the process to the lawyers, judges and juries. As the paradigm shift continues, the question will not be whether to use mediation and/or other non-adversarial method of dispute resolution like Collaborative Law, but rather how early in the process should the parties turn to these approaches.

But with change comes resistance, lack of understanding and lack of security, even if people know that what they have been doing isn’t working very well. The parties and lawyers know that the new playing fields of conflict resolution advocacy make sense and is logical, but change still is difficult.

In their new and enlightening book Switch, Chip and Dan Heath, who also authored Made to Stick, and who write a great column in Fast Company magazine, shed light on how to best effectuate difficult change. They note that even when you have persuaded “the Rider” (the practical thinker and thinking part of us), the more difficult task is to get “the Elephant” (our feelings and emotions) to accept the change. And the Elephant is always stronger than the Rider!

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Don’t you love it when your spouse or one of the kids responds to your statement of your view or your position with a “gotcha” something along these lines:  “Why don’t we just apply the stuff you do at work every day with your clients to this home and/or family situation?”  In other words, practice what you preach.

The “what I do for my clients”, in my case, is to work with them to resolve their legal disputes in ways that are non-adversarial and “interest-based”.   You can define “interest-based negotiation” as focusing on satisfying the interests of the parties, rather than focusing on the position each party takes, and spending your time determining who is right and who is wrong (or more often, who is more right than the other).

This minor disagreement below between a husband and wife provides a simple example of the difference between a positional argument and a principled negotiation. You can probably project the end result of each path.

A week or so ago, my wife and I were driving down to New York to my son’s engagement party in West Harrison, NY and to visit my wife’s brother and family in Somerville, NJ.   My daughter flew in for the weekend for the occasion from California, so it was an opportunity to spend time with her too.  West Harrison is about an hour and a half from Somerville.  We drove down Saturday morning from Massachusetts, planning to return home after the engagement party Sunday evening.

While we both shared the interests of spending time with both parts of our extended family, we had yet to determine how much time would be allocated to NY and how much to NJ.  And therein the disagreement arose.  There were basically four chunks of time:  Saturday afternoon, Saturday night, Sunday morning and Sunday afternoon.  We had agreement on Saturday afternoon (NJ) and Sunday afternoon (NY).   The middle chunks were at issue.

You can probably predict how the discussion might sound if it starts and stays positional.

Husband:  I want to spend Saturday night with the kids and Sunday morning a little father –son time with my son.  Why don’t we spend a few hours with your brother and the family, and then head back to NY for a late dinner and stay over in NY?

Wife:  I really want to spend more time with my brother, his wife and daughter.  We’ll see the kids at the engagement party Sunday afternoon.

Husband:  That doesn’t give us some quiet quality time with just the kids.  And you know if we stay over, it’ll be difficult to just leave NJ early in the morning and get back to NY for breakfast.

Then comes the critical moment; the choice made that divides the road traveled decisively.  Wife:  Dead silence.  Or worse than that:   “FINE!”  Experienced husbands are well aware of the depth of the definition of the word “FINE” in that context:  i.e. the opposite of fine. Read the rest of this entry »

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.

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