Dispute Settlement Counsel

Recently I presented on various aspects of civil collaborative practice at the Global Collaborative Law Council’s Symposium (Dallas Sept. 2009) and the International Academy of Collaborative Professionals Forum (Minneapolis Oct. 09).  One constant observation, in these two instances as well as others, is that people want to see and hear how the collaborative law approach can be used in actual civil disputes.  It’s one thing to teach about the idea and the process, but it becomes concrete when people can see how it works.

The next few blog posts are going to briefly summarize how the collaborative law processes can be utilized in resolving different civil disputes.  They draw from real cases and real situations.  Since they are all confidential settlement processes and agreements, I cannot reveal names or specific details.  What can be share is what was accomplished, how it worked, how long the process took to “get to yes” and the approximate legal costs.

Let’s look at a sexual harassment case in which the parties agree to utilize a collaborative dispute resolution approach.  In this case, both sides were represented by counsel; I represented the female employee; a large firm represented the non-profit employer.  Although the other lawyer wasn’t trained in collaborative law, both sides and counsel saw the immediate need and value of a collaborative approach, rather than the alternative of litigation.  Right away, the facts present two very good reasons to use a non-adversarial, confidential dispute resolution process.  Imagine the damage to reputation and funding sources if a case like this goes into a public litigation process, and the emotional trauma the employee will go through? 

It was helpful for the parties to separate the people involved and diffuse the workplace while the case was negotiated.  A collaborative approach allowed us to agree to have the employee work off site during this time.  This met an important need of the employer — relieving the tension and potential for polarization of the workplace – and a need of the employee to be protected from that tense environment.

One interest the employee had was that steps be taken so this kind of thing doesn’t happen to another.  That interest was addressed by a commitment by the employer to conduct regular sexual harassment prevention training for the entire organization. 

Another interest was some acknowledgement of what happened and a sincere expression of remorse by the employer.  That was accomplished in the settlement.  The employee needed another job.  The employer was willing – beyond the usual placement services – to use resources it had to help find subsequent employment for the employee.  That was part of the settlement discussion. 

The time it took from the initial letter from me to the employer’s counsel to resolution was about four months.  Settlement included the above elements and a monetary settlement amount.  Litigation would have likely taken 3 to 4 years.   It’s a bit speculative to estimate what the legal costs would have been had this been litigated, but it is fair to estimate that the legal fees for the employer were probably 20-25% of what they would have been in litigation. 

The collaborative approach taken by the parties and their counsel allowed for creative options for resolution, satisfied their interests, saved them time, money and collateral damage.  The advantages over an adversarial process like litigation or arbitration are more than evident.

Many types of disputes can be resolved with similar efficiency and results using the collaborative law approach.  Should you find yourself in a dispute, think about this comparison.

My wife and I just returned from a vacation visiting our National Parks in Utah and Arizona – Zion, Bryce, Arches, Natural Bridges and the North Rim and South Rim of the Grand Canyon.  It was an incredible, humbling trip.

One reason for going to Utah was to visit Arches National Park and see in person the arches that inspired us to use them in our promotion materials.  Let’s take a few minutes to consider these magnificent Arches, and in particular, Delicate Arch and Broken Arch.

One thing that our National Parks do right away is to make us realize how small and insignificant we are compared to the wonders of nature and God’s majestic creation.  We think in terms of weeks, months, years and a lifetime.  But out in the National Parks, the measure of time is thousands and millions of years.  There are over 2,000 arches in Arches Park, all naturally made over millions of years from the elements – wind, gravity and erosion, out of various types of stone – largely sandstone.  When you stand beneath Delicate Arch or the equally impressive Landscape Arch, you get a sense of the scale we’re talking about.  Words and pictures do little to describe what can only be experienced to get a fuller comprehension of these formations of terra cotta stone.

Broken Arch, located at South Devils Garden, Arches National Park, Utah

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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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Last time (Aug. 17), we discussed the advantages of early mediation, as opposed to the more traditional and old school timing of mediation, which usually is just before trial. The standard argument for waiting until before trial is that it is premature to use mediation until all discovery has been completed.

There is some value and logic to that view, because it is usually helpful to the mediation process if both parties and the mediator have the basic relevant facts and information before them. The problem is that the discovery process in litigation is far too burdensome, slow, expensive, wasteful and potentially damaging. It is also inefficient in the way it utilizes discovery and information. (See blog postings of June 21, June 29 and August 3, 2009). Read the rest of this entry »

Mediation is frequently used to resolve disputes of all kinds – business, employment, negligence, medical error, probate, divorces – and the trend toward mediation is growing. Even litigators will tell you that they often end up calling in a mediator before going to trial to get the case resolved. It’s often a better alternative than going to trial, incurring additional costs for the client and risking an uncertain result that is out of the control of the parties and lawyers. Statistically, 98% of the cases filed with the courts settle, and many of those utilize mediation to settle it.

The critical distinction here is when the mediation occurs. The problem with utilizing mediation is not the process of mediation, but rather that the parties wait too long before they turn to the mediator. Read the rest of this entry »

Like discovery, motion practice as we now know it, is not very sustainable either. Motion practice can be a useful tool used to streamline litigation and narrow the issues. Still, within the parameters of civil procedure, it can be a time consuming and costly part of litigation. Often, its purposes can be accomplished by adopting the practice of transparency that is inherent in the nature of Collaborative Practice.

Consider this alternative: Once an initial legal analysis is done, some very open and transparent exchanges of positions and legal arguments between the lawyers can and should take place. Assuming both lawyers assess the case well, they can agree to be open and transparent about their clients’ respective claims and legal positions. This can be helpful in crystallizing both the basis for and the focus of the negotiation and can move the parties to the negotiating table sooner.  Read the rest of this entry »

Another difference between Collaborative Practice (“CP”) and litigation is the way information is viewed and used.  Because CP is not adversarial or positional, lawyers do not have to worry about hiding or minimizing the importance of harmful information or highlighting or over-emphasizing favorable information as they would in litigation.  Remember, we are not in a winner vs. loser model in Collaborative Practice; we are in an interest-based or principled negotiation model (think Roger Fischer’s “Getting to Yes”), which will hopefully produce a win-win (think Stephen Covey’s “Seven Habits of Highly Effective People”) outcome. The more we all know about what we’re trying to do, the better it is. Read the rest of this entry »