Dispute Settlement Counsel

Archive for the ‘Dispute Resolution Resources’ Category

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 »

Have you ever thought negatively about a person or a situation based on information you thought was accurate but which turned out to be wrong?  I remember thinking certain things about another guy I went to school with and for over two years, I didn’t talk much with him except to be polite and civil.  Something triggered an opportunity for him and me to go out for beers or coffee and just talk about things that bothered us about each other.  It turned out both of our beliefs about each other were misconceptions, based on perceptions and assumptions we had never checked out until then.  We became the closest of friends and still are today.

This kind of thing happened over the weekend in my church.  There was some missed communications between people and some of the parishioners started to run with that, believing that what they perceived as a change in plans was orchestrated by what they believed to be a small but controlling group of parishioners.  Not being a big fan of small controlling groups in any organization, let alone in a church, I could relate to this view. But then I learned that one group perceived that I was a part of the small controlling group.  It dawned on me at that moment that the person or persons carrying that perception didn’t really know me very well.

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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 »

What if your entire town made an official commitment to practicing legal wellness, for one year?  Or for that matter, your entire company?  Or your mission-based organization?  Or your family?

A couple of years ago I read an article in AARP Magazine about how Albert Lea, a small town of 18,000 in Minnesota, launched the AARP/Blue Zones Vitality Project.  The town made a commitment for one year to making changes in the way their residents ate, exercised, worked and played.  The guiding principle for the Blue Zones Project is to commit to four traits:  healthier diet, active lifestyle, clear sense of purpose and strong social networks.  A year later, when they went back to Albert Lea to see how things went, they saw that people wanted to keep it going and did just that.  The residents had logged 42,000 miles of walking, up from 37,558 logged a year earlier.  One resident noted that in one year, he increased his life expectancy from 52 years to 78 years. He noted that the project improved both his habits and his happiness.  Five months into the project, participating residents had lost an average of 3 pounds each and had added three years each to their life spans.

Now, take that same concept – a commitment of an entire town to practicing health wellness – but apply it to legal wellness.  For one year, what if town officials agreed that if there were any kind of municipal disputes, neither side would sue or go to court. Instead, participants committed to a pilot project in which they would act differently when they found themselves in disputes.  They agreed to first work together toward resolving it utilizing only non-adversarial dispute resolution processes.  The residents agreed also to commit to take any dispute they had to a designated center in the town or at the worksite, where, working with people trained in non-adversarial and interest-based dispute resolution, the parties worked through their issues together, through a series of negotiation sessions, guided by those trained to facilitate this kind of problem solving.  They also hired an ombudsperson to work discreetly, neutrally and confidentially with people having conflicts or problems in the workplace, in community organizations or in their families to diffuse them.  They utilized several preventive steps, training and educating.  They put policies and procedures in place to prevent certain disputes from occurring.  They put into their contracts dispute resolution clauses by which the parties agreed to try non-adversarial dispute resolution processes first, processes in which they controlled the outcome. Read the rest of this entry »

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.

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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.

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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.

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