Dispute Settlement Counsel

Archive for the ‘Family Law and Divorce’ Category

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Over the last month or so, I’ve been struck by several situations in which one party to a conversation or discussion obviously was listening to what was being said, but it was equally obvious that the listener wasn’t really hearing what was being said.  I have a couple of theories for why, but it’s often because somewhere early on in the exercise of hearing, the listening party stops listening and starts formulating his response in his mind.  Once that happens, any chance of allowing what was heard to actually be thought about or to simmer in the listener’s mind for a few minutes or more is gone.  Dead on arrival.  What was heard was not at all processed and wasn’t thought about beyond what and how to respond.

This is even more true in online communications because we can’t observe the body language, hear the tone of voice or the speed of the words being spoken and the intonations of the speaker.  If the majority of communications is non-verbal, the online listener, reduced to reader, is already at a huge disadvantage in his ability to really hear and understand what is being conveyed to him.

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The largest annual gathering of Collaborative lawyers and professionals just took place in San Francisco from October 27-30, as the International Academy of Collaborative Professionals (IACP) held its 12th annual Forum.  As always, this Forum was an amazing event, four days of insightful, profound and transformative thought in the legal profession.  The IACP‘s mission is “to transform the way conflict is resolved worldwide”.   When 630 of its 4,500 members gathered at this year’s Forum, it was clear that this community walks the walk of transformative dispute resolution work.

I’ve practiced law for over 20 years and can say that by and large, lawyers are a fairly conservative, tradition-based group, steeped in and guided by precedent and procedure.  What is inspiring and attractive about the Collaborative Law (CL) community – particularly those who attend an IACP Forum – is its clear exception to that general norm.  CL attracts some of the most creative, progressive and out of the box thinkers from around the world.  They are fully engaged in this mission of transforming not only the way we resolve disputes, but more importantly the way we think about and approach them.

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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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by Candice Cook & Michael Zeytoonian

When a layman hears the term, “mediation,” he or she generally conjures up in their mind someone who will serve as a third party adjudicator, like an arbitrator, to resolve a dispute.  The notion is that a mediator will ask questions of the disputing parties and help them come to an agreement.  This is only one type or style of mediation known as facilitative mediation.  For many years, it was the most common form of mediation.  In “The Promise of Mediation”, by Bush & Folger, however, another style was introduced:  transformative mediation.

The goal in a transformative mediation is two-fold.  Obviously, the first goal is to resolve the conflict, the main goal of any mediation.  But the second goal, a deeper goal, is to accomplish a real shift or change in the relationship between the disputants.  Transformative mediation earned its label because of its capability to transform the relationship between the parties.  Though they enter as opponents in their issues and position, they exit as allies joined by the solution.

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