Dispute Settlement Counsel

Posts Tagged ‘Collaborative Processes’

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 »

Often I hear attorneys giving their clients an admonition or expressing reservations about using alternative dispute resolution processes like mediation or collaborative law that usually goes something like this: “I don’t think mediation is such a good idea because it’s just a tool used by the other lawyer to obtain free discovery.”

Let’s analyze that statement, looking at it with a reasonable person’s perspective and logic. And let’s test the assumptions inherent in that statement to see if it makes sense. Is the risk of “free discovery” really a serious concern?

Is there anything really problematic with giving the other side “free discovery”? And if “free” discovery is not desirable, then exactly what kind of discovery do we prefer? The opposite of “free” discovery would logically be discovery that is either “paid” for, or one that takes longer and requires the other side to work harder to get. So who is “paying” for the discovery? (Hint: In litigation, if the other side is paying, chances are very good that you are paying too.) Put differently, is the notion of “free discovery” really a misnomer? Read the rest of this entry »

Why Collaborative Practice is a sustainable model for dispute resolution; Part I, Information Exchange

During a recent radio interview for the Business Beat on WICN FM (90.5 fm out of Worcester) host Steve D’Agostino asked if Collaborative Practice was here to stay or a passing fad like the Hula Hoop. It was a great question, the kind which you wish you had more time than a minute to answer. This blog gives me the opportunity to answer it more fully.

Collaborative Practice is here to stay. It will stand the test of time because it is, among other things, a sustainable model, a sort of “greening” of the process of resolving disputes. It will grow in use because it directly answers the questions and concerns like these that today’s clients have:

How can I resolve this dispute quickly?

What is the more efficient and cost-effective process?

How do I resolve this conflict and still maintain a healthy relationship with the party on the other side?

How do I keep this dispute private and confidential?

Is there a way I can have some say and control over the process?

How do we reach resolution without putting the final decisions in the hands of a judge, a jury or a non-appealable arbitrator?

Where can we go to come up with creative solutions that are tailored to our situation?   Read the rest of this entry »

I got a call this week from a lawyer representing a client in a dispute involving environmental and breach of contract issues. He was following up on a recommendation to use me as a mediator in his case. His only question had to do with whether I had recent experience in environmental Superfund issues.

I advised him that my specialty area of study in law school was environmental law and received a certificate in environment law along with my J.D. from Pace Law School, known for its environmental studies program. Also, while I had litigated some major environmental cases earlier in my career, I hadn’t worked on any Superfund cases lately. The lawyer thanked me for my honesty and said he would consider that and get back to me.

The question about whether a mediator is experienced in a certain area of law triggered some thoughts. On the one hand, it’s a fair question and certainly having a mediator who has familiarity with the specific area of law involved is beneficial. But getting up to speed on the legal issues and the body of law involved in a dispute is not a major challenge for most mediators. Gathering and grasping the relevant information and the doing the legal analysis is important for a mediator. But the far more vital skill set and the true value that a good mediator brings to the table is his or her talent and ability as a neutral facilitator. That is, after all, why parties hire mediators and that should be the strongest factor and consideration.

Read the rest of this entry »

Today, many people try to save time and money by using templates and programs available on line or in bookstores to draft their own legal documents. There are some good products out there and some language is pretty much boilerplate.

But not all of it. The devil is in the details, it’s often said. The problem with using already prepared contracts and agreements is that no two situations are alike. Templates designed for general use could not possibly know the specific circumstances of your situation and the specific purposes for your agreement or contract.

The word processing of a contract is a very small part of the service provided and the value added of a lawyer’s work. The larger parts are knowing the client well, caring about the little things in the client’s circumstances, and advising the client on the best ways of dealing with these unique situations: The nature of relationship between our clients and those they do business with, the specific details of his organization or her business, the information and idiosyncrasies that are unique to this situation and the particular relationship that the agreement addresses. The vital purpose fulfilled by having your lawyer draft, fine tune and negotiate the contract is to consider all these specific details and make sure they are addressed.

A lawyer who counsels on and drafts agreements is a conflict resolution advocate. The lawyer is called upon to anticipate situations that may arise in the future of the relationship between the parties, and efficiently address those situations in advance in the contract. A boilerplate agreement downloaded from some general program or software can’t possibly fulfill this function. This is where the real advocacy and representation lives; where an attorney proves his or her real worth to the client. We need to provide good answers in the contract to this question: What if this happens?    Read the rest of this entry »

What do Abraham Lincoln, Mark McCormack and Jesus have in common?

They were all respected counselors in their time and pointed out the advantages resolving disputes quickly and efficiently.

Today, I happened to check back with a book I hadn’t read for years: The Terrible Truth About Lawyers, by Mark H. McCormack, a lawyer who is better known as the founder, CEO and Chairman of the International Management Group.  Written in 1987, it was given to me by a relative while I was in law school in 1988.  I read it eagerly then, and hadn’t gone back to it since.

In the interim, my legal career began prosecuting child abuse cases in Westchester County, NY, then litigating all kinds of cases in New York and Massachusetts for the better part of the next two decades. In the process, I crossed paths with processes like Collaborative Law, mediation and ombuds services, getting trained and gathering experience in each and developing an part of my practice in Preventive Law.  As I got on in counseling and representing clients, I’ve come to know that they are best served when we help them prevent disputes from ever arising.  When conflicts do arise, we provide value when we help them work through and resolve disputes effectively using methods best suited to their situations and interests and that are cost, time and resource efficient.  Read the rest of this entry »