Dispute Settlement Counsel

Posts Tagged ‘Dispute Resolution Counsel’

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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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(second in a series and dialogue on the workplace)
Workplace bullying and harassment are emerging issues to be addressed by employers.  Add the potentially larger problem of increased stress, decreased morale and diminished productivity of those employees who remain after layoffs, who are expected to carry the same load with less people, less experiential knowledge and less resources.  Factor in a still sluggish economy and high unemployment, and we have a workplace perfect storm and a cresting wave of workplace discontent.

I think employers need to be proactive and act ahead of the law. Ignoring this rising crisis may result in a layer of liability and non-compliance resulting from new laws.  Their efforts to run a business may be stymied by a mobilized work force or they may have to close down because they failed to navigate this storm effectively.   This storm will stay in the workplace and be also strengthened by the changes in the workplace brought by information technology and Generation Y.  This is not your father’s work environment anymore.

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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 »

(last in this series of seven)

Last week, in discussing the value of confidentiality in dispute resolution, we noted that companies, organizations and individuals in disputes are not often motivated or focused on things like respect, civility, empathy, equity, fairness or just being gracious in our dealing with the other party to the dispute. In fact, some lawyers and some clients view the consideration of these notions as a sign of weakness and urge clients to just stick to the facts and the law.

The truth is, these elements go a long way toward creating a better environment for negotiation, establishing some trust, and ultimately reaching a more complete and lasting resolution.  Further, they are often at the core of those interests that are important to parties involved in sexual harassment, discrimination, medical error or family business disputes, along with the need for their views to be heard and considered, and the need to change a flawed workplace culture.   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 »