Dispute Settlement Counsel

Posts Tagged ‘Dispute Resolution Advocacy’

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Over the last month or so, I’ve been struck by several situations in which one party to a conversation or discussion obviously was listening to what was being said, but it was equally obvious that the listener wasn’t really hearing what was being said.  I have a couple of theories for why, but it’s often because somewhere early on in the exercise of hearing, the listening party stops listening and starts formulating his response in his mind.  Once that happens, any chance of allowing what was heard to actually be thought about or to simmer in the listener’s mind for a few minutes or more is gone.  Dead on arrival.  What was heard was not at all processed and wasn’t thought about beyond what and how to respond.

This is even more true in online communications because we can’t observe the body language, hear the tone of voice or the speed of the words being spoken and the intonations of the speaker.  If the majority of communications is non-verbal, the online listener, reduced to reader, is already at a huge disadvantage in his ability to really hear and understand what is being conveyed to him.

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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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(First in a Series & Dialogue)

Much of my work in preventive law and dispute resolution involves workplace situations and disputes.  I have many great business and non-profit clients and many individual clients who are employees.  I’ve never liked the idea of being pigeonholed as an “employer’s or management side” or “employee’s side” lawyer any more than I wanted to be labeled a plaintiff’s attorney or defense attorney.  Representing both sides has helped me counsel clients better as I understand the perspectives of both sides, along with the views of the other “stakeholders” in workplace issues – families, communities, subcontractors, lawmakers and the consumers of the business products and services involved in the dispute.

Many of my employer clients treat employees wonderfully, even in this challenging economy and an ever changing workplace.  But lately I have been hearing too many stories and fielding too many inquiries and phone calls that reflect an increasingly troubling trend – that of laying off people to cut costs and then expecting those who remain employed after the serious cutbacks to do much more to compensate for the work of those who were laid off.  Those that are left behind are increasingly overworked, under-appreciated, under-compensated and incredibly stressed out, given the extra burden they have assumed. Read the rest of this entry »

(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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Photo credit: John Drysdale

A paradigm change is underway in the way legal services for resolving disputes are provided to clients, even though sometimes the movement feels so slow you can’t see or feel the change. The old traditional way of resolving disputes by suing, going to court and getting involved in years of expensive litigation is giving way to newer, more streamlined approaches designed to achieve faster, less expensive and more lasting resolution. The new approaches also minimize the bad by-products of contentious litigation: damage to relationships, reputations damage to business or family, and the draining of resources, energies and emotions.

Mediation has steadily become the vehicle of choice for parties who wish to avoid the warfare and adversarial process of litigation. Parties are no longer so willing to just hand over the decision making as well as control of the process to the lawyers, judges and juries. As the paradigm shift continues, the question will not be whether to use mediation and/or other non-adversarial method of dispute resolution like Collaborative Law, but rather how early in the process should the parties turn to these approaches.

But with change comes resistance, lack of understanding and lack of security, even if people know that what they have been doing isn’t working very well. The parties and lawyers know that the new playing fields of conflict resolution advocacy make sense and is logical, but change still is difficult.

In their new and enlightening book Switch, Chip and Dan Heath, who also authored Made to Stick, and who write a great column in Fast Company magazine, shed light on how to best effectuate difficult change. They note that even when you have persuaded “the Rider” (the practical thinker and thinking part of us), the more difficult task is to get “the Elephant” (our feelings and emotions) to accept the change. And the Elephant is always stronger than the Rider!

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Last week I attended a conference on Sustainability in Business, co-sponsored by the Boston College Leadership for Change program and the Sustainable Business Network of Greater Boston.  In a group discussion, I was asked this question:

“So what does the issue of sustainability have to do with lawyers and dispute resolution?

Good question.  We typically think of sustainability as it relates to protecting our environment, going green, conserving energy, avoiding pollution, etc.   One obvious intersection of dispute resolution and sustainability would be the conflicts that are inherent when you think about the different interests and stakeholders interacting on sustainability issues.  These matters would be better resolved by non-adversarial approaches that focus on satisfying interest, rather than fights between positions and rights.

But there’s another intersection.  Shouldn’t the consideration of sustainability also extend to all resources, not just the natural ones?  The concept can also be applied to the inefficient use of time and funds, the misuse of human resources, and the draining of energies and emotions.  These can have a devastating impact on the sustainability of a business, an organization or a way of doing things.

I give a lot of thought to the way we resolve disputes, and the efficiency of the methods and approaches we use.  The more common approaches, particularly litigation and court intervention as we know it today, clearly are not sustainable.

Litigation cost too much, takes too long, carelessly misuses our human resources and is often damaging to our psyches.  One reason our courts cannot handle their caseloads is because of budget cuts and staffing reductions.  But a bigger reason, completely overlooked, is that we are asking our court system to do more than it should be doing.

Court and litigation should be our last resort, only turned to when other attempts to resolve disputes have failed, not the starting point.  If we utilized our courts that way, they would be sustainable.  But our legal system is built on an adversarial model, in which court has become the first stop – for filing a complaint or a petition – rather than the last resort.

Over 98% of the case filed in courts settle and never get tried!  This fact begs the question:  If the chance that our case will get to trial is less than 2%, then why are we going to the court to decide the matter?

In the language of the green community, why would you spend all your time, money, resources, systemic development, education and emotions pursuing oil, coal and fossil fuels if you knew that at the end of the day, you were going to use solar or wind energy?

When it comes to resolving disputes, people spend thousands of dollars, years of time, hundreds of man hours, immeasurable human energy and emotion, ruin good relationship and damage reputations by litigating.  Only at the end of that process do they then half-heartedly turn to a method they should have utilized from the very beginning of their dispute.  And after all that waste and abuse, the process they just put themselves through is one they swear they will never go through again and the result is almost always one with which they are dissatisfied.

Sustainable models for resolving problems exist.  One such model is Integrated Dispute Resolution (IDR).

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 »