Dispute Settlement Counsel

Posts Tagged ‘Creative Solutions’

In our last blog post, I suggested the good sense idea of having a primary care lawyer in one’s team of trusted advisors, as one would have a primary care physician, an accountant, a business or personal coach, and for some, a financial advisor.  There are, as we discussed, many advantages to having trusted legal counsel on board, someone who knows your business and family circumstances well, knows your priorities and goals, your disposition and who can give you good preventive and proactive advice, before you decide which legal path to travel.

Some readers pointed out that while that would be practical and helpful, unlike a primary care physician, which is most often covered and included in one’s medical benefits and health insurance, legal counsel is not usually included among the benefits offered by companies.  It’s an out of pocket cost to the user/client, one that many just can’t afford to include in their budgets.

That good point got me to thinking two thoughts:

1.  Yes, it is a costly service to add trusted legal counsel to a person or family or small business budget, but in the long run, it will most likely save hundreds, if not thousands of dollars.  It’s similar to paying a little more for organic food or fresh produce from small family farms as part of our preventive health approach to our bodies.  My grandfather, one of the wisest men I ever knew, used to teach us that there were two places you should never cut costs:  Food and shoes.

2.  Maybe companies and employers should consider offering this benefit to employees, something small that the company may not need to buy insurance to cover.  They should do it not only because it’s a good benefit to offer to their employees in trying to do right by them, but also because it’s probably going to be a cost savings to the company, for the very same, preventive, proactive reasons as it saves a person money.  When people utilize preventive law and avoid litigation, they not only save money, but also save time, time that would be taken off from work to attend to the demands of litigation or bigger legal problems. People also avoid the stress and emotional drain, the sense of being worn down by a legal dispute, especially one that goes into litigation.  These factors directly impact a person’s mental and emotional well-being and one’s productivity, energy level, focus and concentration in the workplace.  The combined cost of time off and unproductive, distracted work from an employee who is preoccupied and consumed by litigation is significant and detrimental to the workplace.

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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 »