Archive for the ‘Mediation’ Category
Compliance more likely if cases are mediated
March 8th, 2011 | 
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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.
Mediation breaks into TV and shows its advantages over litigation
It’s great that there are now two new shows which focus on mediation as an alternative to the court process. One is Fairly Legal (Thursday at 10 pm EST on USA Network); the other is Harry’s Law (Mondays at 10 pm EST on NBC).
Fairly Legal’s premise is the use of mediation to resolve disputes rather than going to court and fighting through a litigation process. The lead character, Kate Reed, is a lawyer who walked away from the litigation side of the profession to become a mediator.
Episodes I’ve watched have portrayed employment, intellectual property, divorce and criminal cases resolved by the creative intervention of the mediator. At the end of the February 24 episode, Kate gave a presentation to a room full of lawyers on the advantages of mediation over court-based litigation, making the case we have been making - it saves time, saves money, saves relationships, can be more creative in coming up with good solutions and is confidential.
Harry’s Law is a law show with a twist. The lead lawyer, played by Kathy Bates, runs her law practice out of a shoe store. This resonates with me because I can envision combining a dispute resolution practice with a breakfast and lunch restaurant – my ultimate goal.
The February 21 episode was on point for two reasons: It presented two cases, one showing in a compelling way how mediation can be used effectively to resolve a neighborhood gang dispute and the other showing in an equally compelling way how a court-determined verdict fell so short of solving the problem in an employment dispute.
Another situation calling for Collaborative Law
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.
Employees, Employers and the MCAD; “We” are not “Them”
(Third in a series on the workplace)
Last week I had the opportunity to hear a brief presentation by Julian Tynes, the newly appointed Chairman and Commissioner of the Massachusetts Commission Against Discrimination (MCAD), along with MCAD Commissioner Sunila Thomas-George and other members of the MCAD staff. Chairman Tynes was part of a panel at the 13th Annual Employment Law Conference, sponsored each year by Massachusetts Continuing Legal Education (MCLE) in Boston on December 10.
Commissioner Tynes’ purpose, along with that of his panel, was to update employment lawyers on recent developments, changes, procedures and recent discrimination case decisions at the MCAD. One initiative that resonated with me personally as a father and former custodial parent was the suggestion that the Massachusetts Maternity Leave Act be changed to become the Massachusetts Parental Leave Act, be gender neutral and give fathers the same right as mothers to take work leave to care for children.
But as a mediator and employment lawyer who represents both employers and employees, what struck me about the MCAD Chairman’s message were three things: His level of enthusiasm, passion and commitment that was reflected in his message, his taking time to set an example and first thank many of the MCAD staff who was present at the conference, and his view of the work that the MCAD and discrimination lawyers do as working together toward achieving a shared goal – that of eliminating discrimination from the workplace.
Posted in Business, Collaborative Law, Mediation | 
Tags: Collaborative Mediation, Dispute Resolution Resources, Employment Disputes, Mediation | 
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Why be proactive in our treatment of employees?
(second in a series and dialogue on the workplace)
Workplace bullying and harassment are emerging issues to be addressed by employers. Add the potentially larger problem of increased stress, decreased morale and diminished productivity of those employees who remain after layoffs, who are expected to carry the same load with less people, less experiential knowledge and less resources. Factor in a still sluggish economy and high unemployment, and we have a workplace perfect storm and a cresting wave of workplace discontent.
I think employers need to be proactive and act ahead of the law. Ignoring this rising crisis may result in a layer of liability and non-compliance resulting from new laws. Their efforts to run a business may be stymied by a mobilized work force or they may have to close down because they failed to navigate this storm effectively. This storm will stay in the workplace and be also strengthened by the changes in the workplace brought by information technology and Generation Y. This is not your father’s work environment anymore.
IDR or All-Star Baseball Arbitration…complete IDR or civil Collaborative Law
(Part two on Baseball Arbitration)
To respond to clients’ needs for a better fitting dispute resolution process than some of the established methods, we created a very fluid and flexible Integrated Dispute Resolution (IDR) process earlier this year. IDR allows us to tailor the process to the specific circumstances of each dispute and integrate the right elements from other processes like case evaluation, the use of coaches, consultants and neutral experts, to give the parties what they need for the best resolution.
We hadn’t thoroughly addressed the need for closure in the IDR process or when the parties through their efforts in Collaborative Law or early mediation still can’t resolve the dispute completely. Statistics show that parties only come up short about 10% of the time or less, when they use Collaborative Law (CL) or IDR. Nonetheless, clients at the beginning of the process are still concerned about closure and what happens if they don’t resolve the matter.
CL requires limited representation by attorneys; if the case does not resolve through CL, the lawyers cannot continue to represent the parties in subsequent litigation. In divorce or probate cases, this is not that much of a deterrent for parties as they typically don’t have long-standing relationships with their attorneys and the representation doesn’t require the lawyers to know their business well. But in civil business and employment cases, where clients often have ongoing and trusting relationships with their attorneys, this limited representation requirement is a potential obstacle to using the CL process. Having to teach a new attorney about the client’s business or workplace adds another layer of costs and calls on the client to replace his trusted counsel with someone new to handle the litigation.
Baseball Arbitration Belongs Here – Let the games begin, and the disputes end!
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.
