Dispute Settlement Counsel

Posts Tagged ‘Collaborative Mediation’

I’m often asked how case evaluation is used to resolve a dispute.  The best way to explain is to tell about a case that was resolved using a case evaluator/mediator.

One important prerequisite is that the parties to the dispute – and their lawyers — have to want to resolve the matter quickly and approach it like a problem to solve, not a fight over who is right.  This is sometimes driven by the nature of the case, or by the ability of both parties to see that their interests are not best met by prolonged, expensive and cumbersome litigation.

In this homeowner-contractor dispute, both parties needed to get the issues about payment and continued or discontinued work resolved quickly.  The homeowners’ family life was being disrupted the longer the dispute remained unresolved and the contractor’s ability to earn more money and deploy his resources effectively hung in the balance.   Both lawyers realized that neither client would benefit by the costs and length of litigation, and the matter was not a clear cut case in which one side was clearly right.

I suggested the use of a neutral case evaluator, a lawyer very well versed in construction cases, both with respect to the relevant facts to focus on as well as the state of the law as to these kinds of disputes.  To his credit, my counterpart counsel agreed to put any litigation on hold and we were both able to persuade our clients to try this approach.  There was one procedural snag:  the contractor had put a mechanic’s lien on the house and needed to file a complaint within 90 days to prefect the lien.  We agreed to allow the contractor to file the complaint in order to preserve his right to the lien, and then there would be a standstill agreement and a hold on the litigation to allow time to work with the case evaluator.

Read the rest of this entry »

The crisis of child abuse by priests of the Roman Catholic Church and the cover-ups by their bishops was the focus of a recent Time magazine cover story (June 7, 2010).  The story caught my interest for several reasons:  I am a committed Christian, an active member of the oldest national Christian church, the Armenian Orthodox Church, and a former seminarian who gave serious though to becoming a clergyman.  And my first job out of law school was prosecuting child abuse cases in Westchester (NY) County.

But also, I was interested in the story because I am a lawyer and mediator, dedicated to the non-adversarial resolution of dispute resolution.  I read the article with sadness, feeling compassion for the victims, but also for the Catholic Church dealing with a difficult issue and for the stakeholders – the faithful of the Catholic Church and all those other priests who have done no wrong, but have to live with the stigma of the wrongdoing that touches their ministries as well.

The article mentioned the two approaches that people are presently using to address this crisis:  either going through a long litigation path that begins with the state Attorney General’s office and is thereafter driven by private attorneys or an internal process within the hierarchy of the Church.  The first is tremendously draining and damaging to those victims who can even afford the legal fees; the second has failed to gain the trust and confidence of the people because it has often done little more than transfer or re-assign the suspected priests and keep the matter as quiet as possible. Read the rest of this entry »

Photo credit: John Drysdale

A paradigm change is underway in the way legal services for resolving disputes are provided to clients, even though sometimes the movement feels so slow you can’t see or feel the change. The old traditional way of resolving disputes by suing, going to court and getting involved in years of expensive litigation is giving way to newer, more streamlined approaches designed to achieve faster, less expensive and more lasting resolution. The new approaches also minimize the bad by-products of contentious litigation: damage to relationships, reputations damage to business or family, and the draining of resources, energies and emotions.

Mediation has steadily become the vehicle of choice for parties who wish to avoid the warfare and adversarial process of litigation. Parties are no longer so willing to just hand over the decision making as well as control of the process to the lawyers, judges and juries. As the paradigm shift continues, the question will not be whether to use mediation and/or other non-adversarial method of dispute resolution like Collaborative Law, but rather how early in the process should the parties turn to these approaches.

But with change comes resistance, lack of understanding and lack of security, even if people know that what they have been doing isn’t working very well. The parties and lawyers know that the new playing fields of conflict resolution advocacy make sense and is logical, but change still is difficult.

In their new and enlightening book Switch, Chip and Dan Heath, who also authored Made to Stick, and who write a great column in Fast Company magazine, shed light on how to best effectuate difficult change. They note that even when you have persuaded “the Rider” (the practical thinker and thinking part of us), the more difficult task is to get “the Elephant” (our feelings and emotions) to accept the change. And the Elephant is always stronger than the Rider!

Read the rest of this entry »

Don’t you love it when your spouse or one of the kids responds to your statement of your view or your position with a “gotcha” something along these lines:  “Why don’t we just apply the stuff you do at work every day with your clients to this home and/or family situation?”  In other words, practice what you preach.

The “what I do for my clients”, in my case, is to work with them to resolve their legal disputes in ways that are non-adversarial and “interest-based”.   You can define “interest-based negotiation” as focusing on satisfying the interests of the parties, rather than focusing on the position each party takes, and spending your time determining who is right and who is wrong (or more often, who is more right than the other).

This minor disagreement below between a husband and wife provides a simple example of the difference between a positional argument and a principled negotiation. You can probably project the end result of each path.

A week or so ago, my wife and I were driving down to New York to my son’s engagement party in West Harrison, NY and to visit my wife’s brother and family in Somerville, NJ.   My daughter flew in for the weekend for the occasion from California, so it was an opportunity to spend time with her too.  West Harrison is about an hour and a half from Somerville.  We drove down Saturday morning from Massachusetts, planning to return home after the engagement party Sunday evening.

While we both shared the interests of spending time with both parts of our extended family, we had yet to determine how much time would be allocated to NY and how much to NJ.  And therein the disagreement arose.  There were basically four chunks of time:  Saturday afternoon, Saturday night, Sunday morning and Sunday afternoon.  We had agreement on Saturday afternoon (NJ) and Sunday afternoon (NY).   The middle chunks were at issue.

You can probably predict how the discussion might sound if it starts and stays positional.

Husband:  I want to spend Saturday night with the kids and Sunday morning a little father –son time with my son.  Why don’t we spend a few hours with your brother and the family, and then head back to NY for a late dinner and stay over in NY?

Wife:  I really want to spend more time with my brother, his wife and daughter.  We’ll see the kids at the engagement party Sunday afternoon.

Husband:  That doesn’t give us some quiet quality time with just the kids.  And you know if we stay over, it’ll be difficult to just leave NJ early in the morning and get back to NY for breakfast.

Then comes the critical moment; the choice made that divides the road traveled decisively.  Wife:  Dead silence.  Or worse than that:   “FINE!”  Experienced husbands are well aware of the depth of the definition of the word “FINE” in that context:  i.e. the opposite of fine. Read the rest of this entry »

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 »