Posts Tagged ‘Efficient dispute resolution’
What if you don’t want to litigate, but also want to guarantee closure?
January 17th, 2012 | 
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You find yourself in a dispute, let’s say it’s a sexual harassment case and you are the employer and alleged wrongdoer. You don’t want to litigate this matter for lots of reasons: it’s too expensive; it would take too long; it would draw too many of your employees, including you, away from the business; it would give the company bad publicity; it would polarize your employees and pit them either for or against the alleged victim, and it would be emotionally draining for those involved. Add to that the facts that the alleged victim is a valued employee you don’t want to lose and you want to be seen in the workplace as an enlightened employer and a company people want to work for because they are treated well.
All good reasons why you don’t want to litigate this matter. Add to those one more: If you litigate, the process, the pace and timing and the outcome is out of your control and someone else – a government agency, a judge, an arbitrator or a jury – will decide the case.
You have heard about alternative dispute resolutions methods like mediation or collaborative law (CL), both of which offer you many of the advantages that litigation cannot offer you. But the one thing those methods don’t give you is closure: If the matter doesn’t get resolved by using CL or mediation, then you have to start over and go to court or an arbitrator, draining you of more time and more money. You want the control over the process and outcome and you want the privacy and confidentiality. You want a less expensive and more streamlined efficient process, one that achieves resolution in a few months or less, not a few years. Read the rest of this entry »
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Why don’t more people use Collaborative Law?
Lately some of us lawyers who use Collaborative Law (“CL”) in civil disputes other than divorce cases have been brainstorming about the expanded use of CL in employment, business, probate, construction and other areas of law. In the spirit of transparency that is an important element of CL, we’ve focused on why more people don’t use CL to resolve their business or employment or other civil disputes.
We know that CL is an efficient and agile process and is ideal for many disputes, especially those in which preserving relationships is important. We also know that it is not the best process for every dispute. For some cases, mediation may be better; for others arbitration and for still others, litigation. For many disputes, often a hybrid approach works best, which may utilize some of the principles and techniques of CL, but not all of the elements of the widely accepted CL process model.
Compliance more likely if cases are mediated
Does the way a dispute gets resolved – either through a negotiated out of court settlement process or through a verdict or finding of a court — impact the level of compliance with the terms of the resolution? Put differently, are people more or less likely to carry out the terms of the final resolution when it is the result of a process like mediation or collaborative law or other non-adversarial processes?
One answer was recently provided in an article by Lorig Charkoudian in the Winter, 2010 issue of the Conflict Resolution Quarterly, addressing the issue of what happens after negotiated settlements. We know from studies, literature and statistics that there is a high rate of successful resolution in mediated cases, just as there is a high rate of satisfaction with the mediation process. But Charkoudian’s articles focuses on the rate of compliance with the terms of a negotiated agreement, compared with court resolved cases.
Another situation calling for Collaborative Law
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.
Baseball Arbitration Belongs Here – Let the games begin, and the disputes end!
I’ve been looking at baseball arbitration lately to consider including it in the dispute resolution services we offer at the Zeytoonian Center. Upon further review, it should be added to our DR spectrum. It is a great complement as an option for closure in some of the other processes, like IDR and civil Collaborative Law.
In fact, civil Collaborative Law’s response to the addition of baseball arbitration as a closure option to its process may soon echo the memorable, if a bit sappy, quote of Jerry Maguire: “You complete me.” But we’ll come back to that in the next blog post.
We’ve made it a point at the Zeytoonian Center to exclude arbitration from what we do, in contrast to most ADR providers for whom arbitration is a major offering. Our reason for excluding arbitration is clear: It’s not consistent with one of our core philosophies: the “sovereignty of the client”. In all our processes and work, the clients make the ultimate decisions on how the dispute will be resolved. Our clients have direct input into the process used, the pace of the process and in determining the options for resolution. We don’t determine the resolution – our clients do. We advise them, we are their advocates, guide them through efficient processes and help them reach good settlements.
Arbitration does not leave the determination, or for that matter the process, to the parties. The arbitrator makes those decisions. The only input the parties have in typical arbitration is to choose the arbitrator. Since most arbitration is binding, they don’t even have the chance to appeal the arbitrator’s decision if it is wrong on the facts or the law. Parties in arbitration completely abdicate their sovereignty and control. That is why it’s not included in what we do here.
We also don’t include arbitration because it has become too much like litigation in many cases. It’s no longer streamlined and efficient. It often includes discovery, motion practice, hearings, presenting evidence, witnesses, briefs or memoranda of law. Arbitrations that stretch out over a year or more are not unheard of. Some lawyers have observed that arbitration is pretty much like litigation except that the parties pick (and pay for) the judge and suggest that it should no longer be included in the ADR spectrum. Like litigation, it’s not a sustainable process.
We believe the parties in the dispute should ultimately decide how it gets resolved. They should select the right process, with our guidance and recommendations, and should make the final decisions about what the resolution will look like. Dispute resolution needs to be efficient in time and cost, needs to preserve important relationships and not drain the resources and emotions of the parties. The process should and can be agile and creative enough to come up with solutions that really fit the needs and meet the interests of the parties.
The Case for Case Evaluation
I’m often asked how case evaluation is used to resolve a dispute. The best way to explain is to tell about a case that was resolved using a case evaluator/mediator.
One important prerequisite is that the parties to the dispute – and their lawyers — have to want to resolve the matter quickly and approach it like a problem to solve, not a fight over who is right. This is sometimes driven by the nature of the case, or by the ability of both parties to see that their interests are not best met by prolonged, expensive and cumbersome litigation.
In this homeowner-contractor dispute, both parties needed to get the issues about payment and continued or discontinued work resolved quickly. The homeowners’ family life was being disrupted the longer the dispute remained unresolved and the contractor’s ability to earn more money and deploy his resources effectively hung in the balance. Both lawyers realized that neither client would benefit by the costs and length of litigation, and the matter was not a clear cut case in which one side was clearly right.
I suggested the use of a neutral case evaluator, a lawyer very well versed in construction cases, both with respect to the relevant facts to focus on as well as the state of the law as to these kinds of disputes. To his credit, my counterpart counsel agreed to put any litigation on hold and we were both able to persuade our clients to try this approach. There was one procedural snag: the contractor had put a mechanic’s lien on the house and needed to file a complaint within 90 days to prefect the lien. We agreed to allow the contractor to file the complaint in order to preserve his right to the lien, and then there would be a standstill agreement and a hold on the litigation to allow time to work with the case evaluator.
The New Sustainable Lawyer
Things change fast and laws sometimes lag the current reality.
I’ve been looking at the lawyer of tomorrow, which in society’s real time timetable means today’ lawyer. Things change so quickly in today’s world that if you’re equipped to handle yesterday’s problems today, you may be “so five minutes ago” tomorrow.
The pace of today’s IT world is creating havoc for lawyers and lawmakers armed with tools and rules of engagement that just can’t keep up with today’s realities. By the time a law is written, introduced, debated, passed and takes effect, it’s already outdated. By the time the legal system’s civil procedure plays itself out, the problem presented to the courts to resolve is probably irrelevant to the parties that dropped it on the lawyers’ doorstep a few years ago. Somewhere around the time the lawyers would be meandering through a year-long discovery process, drafting strategic motions and preparing for a trial that is highly unlikely happen (over 95% of cases filed with courts settle and never get to trial), today’s clients will have already either put a temporary band-aid on the problem or just walked away from it altogether.
Suggest to a young entrepreneur in his twenties the notion that the legal adversarial system will decide his dispute in about two to four years (if there’s no appeal), and the legal fees will run some five digit number and brace yourself for the look that roughly translates into something like this: Three years? Exactly what planet did you just arrive here from? Or, in the language of the environmental, energy, green and organic communities, you will have just earned this undesirable label: That is not a sustainable model.
