Dispute Settlement Counsel

Posts Tagged ‘Collaborative Processes’

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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(second in a series)

Last blog post (Why aren’t more people using CL?), we noted that people in disputes often overlook a very important consideration:  how information is exchanged.  It is one of three critical questions when it comes to resolving disputes:

1. Are the parties willing to focus on resolution by intention and design and not go to court?
2. What is the most efficient process (the best fit) for your particular dispute situation?

So how do parties handle the exchange of relevant information?  Old school dispute resolution, via litigation, was the “hide the ball” approach, by which parties try to hide or minimize that information that hurts your position and hope the other side doesn’t find it.  At the same time, parties often exaggerate and shine the spotlight early and often on that information that supports their positions. Read the rest of this entry »

Lately some of us lawyers who use Collaborative Law (“CL”) in civil disputes other than divorce cases have been brainstorming about the expanded use of CL in employment, business, probate, construction and other areas of law.  In the spirit of transparency that is an important element of CL, we’ve focused on why more people don’t use CL to resolve their business or employment or other civil disputes. 

We know that CL is an efficient and agile process and is ideal for many disputes, especially those in which preserving relationships is important.  We also know that it is not the best process for every dispute.  For some cases, mediation may be better; for others arbitration and for still others, litigation.  For many disputes, often a hybrid approach works best, which may utilize some of the principles and techniques of CL, but not all of the elements of the widely accepted CL process model. 

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Part 1 of 2 parts on PDR

In the language of the people, what we do at the Zeytoonian Center is work with people to resolve their disputes without going to court and without engaging in a process known as litigation.  We use different approaches like mediation, collaborative law, conciliation, case evaluation and our own Integrated Dispute Resolution (“IDR”) to help people solve their problem and we tailor that approach to the specific situation and circumstances of the people in that particular dispute.

In our materials and writings and presentations we make, you’ll hear three different acronyms thrown around:  “ADR”, “IDR” and a new one that we are going to start using now which will take the place of ADR, “PDR”.   Lay people get annoyed when lawyers talk in legal jargon, and rightly so, so I want to use these next two blog posts to explain what each one is, what each one means, and then ask you to join us in changing their meaning to reflect your interests and replace ADR with PDR.  We’ll explain what PDR is in the next blog.  We’ll save IDR for another blog post.

ADR stands for alternative dispute resolution.  ADR has included processes like mediation, arbitration, collaborative law, conciliation, etc.  Historically, lawyers have viewed ADR as the alternative to litigation.  As such, litigation has been the process of choice for lawyers.  In some instances, usually because it’s stated in the terms of a contract, businesses will use arbitration instead of the courts. Read the rest of this entry »

Last week, while working essentially in a role of settlement counsel in a business transaction dispute, I came across another situation that highlighted the value of using Collaborative Law (“CL”).  Unfortunately, this case was already in litigation, and has already crossed state lines via a change of venue motion which was granted.

But the good news is that the parties recognize that it would be in everyone’s interests to resolve this case early, rather than sink a lot of time and money into its litigation.  There are a couple of legal issues which may either need a judge to ultimately decide them, or may at some appropriate point be handled by the parties with the help of a good mediator.

The question which has come up though, as it often does, is that of determining the right time to utilize the vehicle of mediation to help resolve disputes.  Too early and the parties don’t have enough factual information to be able to assess the situation; the lawyers don’t have enough information to be able to wisely advise their clients in the mediated negotiations.  Too late and the parties lose out on some of the primary benefits of mediation -  saving money, saving time, avoiding the draining of human and emotional resources and damaging relationships.

Once the discovery process begins in a case, it tends to take on a life of its own.  There is no mechanism in the litigation process to be able to stop when you have gathered all the relevant information you need and go into negotiation mode.  It is also difficult for lawyers to make the strategic, mental and emotional shift mid-case from a gladiator fighting an adversarial win-lose war to negotiator looking for solutions that satisfy the interests of both parties, and facilitate enough of a win-win to reach resolution.

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(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.

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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.

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