Dispute Settlement Counsel

Archive for the ‘Dispute Resolution Resources’ Category

(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.

Read the rest of this entry »

(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.

Read the rest of this entry »

(First in a Series & Dialogue)

Much of my work in preventive law and dispute resolution involves workplace situations and disputes.  I have many great business and non-profit clients and many individual clients who are employees.  I’ve never liked the idea of being pigeonholed as an “employer’s or management side” or “employee’s side” lawyer any more than I wanted to be labeled a plaintiff’s attorney or defense attorney.  Representing both sides has helped me counsel clients better as I understand the perspectives of both sides, along with the views of the other “stakeholders” in workplace issues – families, communities, subcontractors, lawmakers and the consumers of the business products and services involved in the dispute.

Many of my employer clients treat employees wonderfully, even in this challenging economy and an ever changing workplace.  But lately I have been hearing too many stories and fielding too many inquiries and phone calls that reflect an increasingly troubling trend – that of laying off people to cut costs and then expecting those who remain employed after the serious cutbacks to do much more to compensate for the work of those who were laid off.  Those that are left behind are increasingly overworked, under-appreciated, under-compensated and incredibly stressed out, given the extra burden they have assumed. Read the rest of this entry »

(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.

Read the rest of this entry »

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.

Read the rest of this entry »

In our last blog post, I suggested the good sense idea of having a primary care lawyer in one’s team of trusted advisors, as one would have a primary care physician, an accountant, a business or personal coach, and for some, a financial advisor.  There are, as we discussed, many advantages to having trusted legal counsel on board, someone who knows your business and family circumstances well, knows your priorities and goals, your disposition and who can give you good preventive and proactive advice, before you decide which legal path to travel.

Some readers pointed out that while that would be practical and helpful, unlike a primary care physician, which is most often covered and included in one’s medical benefits and health insurance, legal counsel is not usually included among the benefits offered by companies.  It’s an out of pocket cost to the user/client, one that many just can’t afford to include in their budgets.

That good point got me to thinking two thoughts:

1.  Yes, it is a costly service to add trusted legal counsel to a person or family or small business budget, but in the long run, it will most likely save hundreds, if not thousands of dollars.  It’s similar to paying a little more for organic food or fresh produce from small family farms as part of our preventive health approach to our bodies.  My grandfather, one of the wisest men I ever knew, used to teach us that there were two places you should never cut costs:  Food and shoes.

2.  Maybe companies and employers should consider offering this benefit to employees, something small that the company may not need to buy insurance to cover.  They should do it not only because it’s a good benefit to offer to their employees in trying to do right by them, but also because it’s probably going to be a cost savings to the company, for the very same, preventive, proactive reasons as it saves a person money.  When people utilize preventive law and avoid litigation, they not only save money, but also save time, time that would be taken off from work to attend to the demands of litigation or bigger legal problems. People also avoid the stress and emotional drain, the sense of being worn down by a legal dispute, especially one that goes into litigation.  These factors directly impact a person’s mental and emotional well-being and one’s productivity, energy level, focus and concentration in the workplace.  The combined cost of time off and unproductive, distracted work from an employee who is preoccupied and consumed by litigation is significant and detrimental to the workplace.

Read the rest of this entry »

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 »