Posts Tagged ‘Collaborative Processes’
So what exactly is an Ombuds person?
January 26th, 2010 | 
Author: Whenever I suggest the use of an Ombuds person (also referred to as an “Ombuds” or an “Ombudsman”) as a key component in the business strategy of being proactive and taking steps to prevent disputes from arising, I get the question: What is an ombuds? What does an Ombuds person do?
An ombuds is a neutral, independent and confidential resource person that a company or an organization hires to help it solve problems – small ones as well as big ones – early on, before they escalate into bigger problems or disputes. An Ombuds is usually someone who is either trained and/or talented as a trusted counselor/intermediary/facilitator. An Ombuds is a part of the process of identifying and solving the problem early on, and plays an important role in helping to solve it. The Ombuds may not be the one that solves it, as much as being the person who puts the wheels of solution into motion.
The most important skill that the Ombuds needs to have is the talent of active and empathetic listening. That is a talent that is highly underrated and often overlooked in the business or organizational world. But it is critical, and is greatly appreciated by those who benefit from the efforts of a good listener.
Equally vital is the talent for having the insight and resourcefulness to identify the essence of the problem and know which way to direct people’s actions, and what resources to bring to bear to solve it. You might call an Ombuds a problem solving architect or engineer, a person with a knack for dissecting the problem, seeing what needs to be done to solve it, and setting things in motion in a neutral way, all the while respecting the confidentiality of the situation. Read the rest of this entry »
Posted in Collaborative Processes, Dispute Resolution Resources, Mediation | 
Tags: Collaborative Processes, Mediation, Ombuds | 
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Dispute Resolution begins with Preventive Law
Most people involved in a dispute think the first step to resolving it is filing a complaint in court and commencing litigation. Then, you basically turn the case over to your lawyers and wait to hear good news from them about the results. Those unschooled in litigation think that very shortly after that, the case will settle, because “all cases settle”, and they will get a nice chunk of money without much time, cost or trauma.
Others think that within a time about as quick as you can pick up your remote, turn on one of many weekly series’ involving trials, and watch the show, your case will be tried, your lawyer will stand up and make some charismatic closing argument like the ones on TV, and your “slam dunk” case will be won.
A Law Student’s Perspective on Starting Out in Law
I had a job interview this week. It was not my dream job, but it was a paying job, which is enough to cause this third-year law student to pay attention. The interviewer wanted to discuss my experience with alternative dispute resolution (“ADR”). I am earning a Certificate of Dispute Resolution in addition to my JD. I also intern with the Massachusetts Collaborative Law Council, so I have some interest with various forms of ADR.
As I enthusiastically explained my viewpoint on the strengths of mediation and other ADR processes and why I think they are advantageous to clients, he interrupted me with a knowing smile and said condescendingly, “Yes, but I like going to court.” He then went on to explain the thrill he gets from the entire litigation process…and I zoned out.
Using Collaborative Practice in business disputes: a few good reasons
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.
Lessons from Ancient Arches
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
Mediation – Why it should be used early – Part I
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 »
Posted in Mediation |
Tags: Collaborative Processes, Conflict partnering process, Efficient dispute resolution |
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Collaborative Processes are Sustainable, Part IV – Alternatives to Motion Practice
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 »
