Dispute Settlement Counsel

Posts Tagged ‘Dispute Resolution Advocacy’

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 »

Part III. Preserving Important Relationships February 7, 2009

How important is it to parties in a dispute to preserve relationships? There are many types of relationships that are central to a dispute: Between contractors and subcontractors, teachers and administrators, pastors and parishioners, doctors and patients, divorcing husbands and wives, family members of a family business, partners of a company, family members in a probate process, non-profit organizations and independent contractors they work with, builders and homeowners, to name some.

One of the factors that make a case a good candidate for using non-adversarial approaches to dispute resolution is the importance of preserving the business, organizational or family relationship and keeping it healthy. If the relationship must survive the dispute, if there will be ongoing dealings or contact between the disputing parties after the dispute is resolved, then ADR approaches like collaborative law, case evaluation and mediation have added value. Like it or not, adversarial positional processes like arbitration and litigation, at the very least, put a strain on relationships and often destroy them altogether. And when the parties go too deep into the litigation process before they turn to a mediator to assist in reaching a settlement, even if the mediation does result in a settlement, the relationships may have already been seriously damaged. The sooner the parties turn to an ADR process, the better the possibility of preserving these important and ongoing relationships.   Read the rest of this entry »