Dispute Settlement Counsel

Posts Tagged ‘Creative Solutions’

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 »

Business owners, managers and entrepreneurs have confirmed some core beliefs of the Zeytoonian Center for Dispute Resolution. They are telling us that the most important element in resolving disputes is preserving important business relationships! They are also telling us that the notion of “winning at all costs” is among the least important considerations in dispute resolution. That is encouraging news and helps to confirm our beliefs about what is critical in dispute resolution and that non-adversarial processes are more responsive and better suited to meet the needs of those involved in disputes. Read the rest of this entry »

What exactly is social enterprise? We read about social capitalist businesses, green companies, and sustainable business practices. One of my favorite magazines, Fast Company, frequently awards top social enterprise businesses and offers stories about how these companies serve some greater purpose beyond making a profit. Recalling Paul Newman’s compelling question in Butch Cassidy and the Sundance Kid, I wanted to find out more about exactly “Who are these guys?” It seems there is a natural synergy between resolving disputes using non-adversarial methods and the core values of social enterprise, but I wanted to explore how this synergy could be acted upon in productive ways. 

So recently (3/27/09), I attended the Eleventh Annual Symposium on Spirituality in Business, sponsored by Sustainable Business Network of Boston at Babson College in Wellesley. My purpose was to learn more about the notions of sustainable business and get to know and listen to people who owned and worked with social enterprise businesses. Among the businesses attending was the day’s honoree, Equal Exchange, based in West Bridgewater, MA., a sustainable business built on a model of taking care of employees to the extent that the employees genuinely own the company and make the decisions together.   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 »