Dispute Settlement Counsel

Posts Tagged ‘Collaborative Mediation’

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 »

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 »

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

Read the rest of this entry »

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.

Read the rest of this entry »

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 »