Dispute Settlement Counsel

Archive for the ‘Mediation’ Category

(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.

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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 »

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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