Dispute Settlement Counsel

Archive for the ‘Dispute Resolution Resources’ Category

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.

Read the rest of this entry »

Mediation and Collaborative Law are two methods that are moving steadily toward the forefront of dispute resolution.  With this heightened interest in early intervention and avoiding litigation, the question that gets increasingly asked is this: What is the difference between Collaborative Law and mediation?  There are several key differences.

First is the timing of their use.  While parties would greatly benefit by using mediation earlier, before they file a lawsuit or early on in the litigation, parties usually turn to mediation too late, after discovery is completed, and often just before the trial.  By then, the parties have already spent lots of time and money and have suffered the collateral damage of litigation.  They are more adversarial then they were at the outset, and often only turning to mediation to avoid the uncertainties of putting their fate in the hands of a jury or judge.  The costs have taken their toll, too much time has passed and their relationships have been damaged or destroyed.

Collaborative Law, on the other hand, is designed as early intervention, to be used instead of and before turning to litigation.  Its focus is only on resolution and settlement by intention.  Because of this, the parties will typically save money, save time, avoid the collateral damage of litigation and still keep the decision-making in their control.

Read the rest of this entry »

Whenever I suggest the use of an Ombuds person (also referred to as an “Ombuds” or an “Ombudsman”) as a key component in the business strategy of being proactive and taking steps to prevent disputes from arising, I get the question:  What is an ombuds? What does an Ombuds person do?

An ombuds is a neutral, independent and confidential resource person that a company or an organization hires to help it solve problems – small ones as well as big ones – early on, before they escalate into bigger problems or disputes.  An Ombuds is usually someone who is either trained and/or talented as a trusted counselor/intermediary/facilitator.   An Ombuds is a part of the process of identifying and solving the problem early on, and plays an important role in helping to solve it.  The Ombuds may not be the one that solves it, as much as being the person who puts the wheels of solution into motion.

The most important skill that the Ombuds needs to have is the talent of active and empathetic listening.  That is a talent that is highly underrated and often overlooked in the business or organizational world.  But it is critical, and is greatly appreciated by those who benefit from the efforts of a good listener.

Equally vital is the talent for having the insight and resourcefulness to identify the essence of the problem and know which way to direct people’s actions, and what resources to bring to bear to solve it.  You might call an Ombuds a problem solving architect or engineer, a person with a knack for dissecting the problem, seeing what needs to be done to solve it, and setting things in motion in a neutral way, all the while respecting the confidentiality of the situation. Read the rest of this entry »

Most people involved in a dispute think the first step to resolving it is filing a complaint in court and commencing litigation.  Then, you basically turn the case over to your lawyers and wait to hear good news from them about the results.  Those unschooled in litigation think that very shortly after that, the case will settle, because “all cases settle”, and they will get a nice chunk of money without much time, cost or trauma.

Others think that within a time about as quick as you can pick up your remote, turn on one of many weekly series’ involving trials, and watch the show, your case will be tried, your lawyer will stand up and make some charismatic closing argument like the ones on TV, and your “slam dunk” case will be won.

Read the rest of this entry »

I had a job interview this week.  It was not my dream job, but it was a paying job, which is enough to cause this third-year law student to pay attention.  The interviewer wanted to discuss my experience with alternative dispute resolution (“ADR”).  I am earning a Certificate of Dispute Resolution in addition to my JD. I also intern with the Massachusetts Collaborative Law Council, so I have some interest with various forms of ADR. 

As I enthusiastically explained my viewpoint on the strengths of mediation and other ADR processes and why I think they are advantageous to clients, he interrupted me with a knowing smile and said condescendingly, “Yes, but I like going to court.”  He then went on to explain the thrill he gets from the entire litigation process…and I zoned out.

Read the rest of this entry »

Business disputes, especially those involving small closely held or family businesses, almost always include relationships that are ongoing and need to be preserved, and often arise out of issues and unmet interests and needs that lie beneath the surface of the stated positions. 

For these reasons and others set out below, Collaborative Law and other non-adversarial approaches designed to resolve business dispute early have been providing value to parties who have used these methods to solve their disputes.  In addition to the need to keep business relationships healthy, there are other practical reasons that favor the use of a collaborative process and approach: cost and time efficiency, confidentiality, and the ability for the parties to determine their own options for resolution.  For family businesses, mission-based, non-profit organizations, entrepreneurial and social enterprise businesses, the cost, time spent and collateral damage of the litigation process would be devastating to their business goals, operations and budgets.  Collaborative process approaches have delivered good results.  

Read the rest of this entry »