Dispute Settlement Counsel

Posts Tagged ‘Mediation’

Part II (Part I on June 18, 2011)

In our last blog, we began the discussion of what ADR is and why people are steadily asking their lawyers to use processes like mediation and collaborative law.  We talked about arbitration becoming more and more like litigation.  We discussed how the economy, the influence of information technology and a better informed public all contribute to a shift away from the long, expensive and cumbersome litigation process to more sustainable models of dispute resolution.

This shift is forcing lawyers to change the way they serve their clients.  It is also pushing more lawyers toward training in mediation and collaborative law and adding these methods to their toolbox.  Clients, better informed and more empowered, are seeking out these processes that were the “alternatives” to litigation.  More and more, mediation, collaborative law and conciliation are the first choices and the “primary” ways to resolving conflict, while arbitration and court-based litigation are gradually becoming the alternatives that parties default to if they cannot resolve their dispute through the non-adversarial approaches.

In Australia, the legal community has already changed the references to reflect the growing demand for these more efficient methods.  Australia now uses the phrase “Primary Dispute Resolution”, or “PDR” to refer to mediation, collaborative law and conciliation, and uses the older term ADR to refer to either litigation or arbitration or the entire spectrum of dispute resolution approaches.  This same change has been encouraged in other places around the world. Read the rest of this entry »

Part 1 of 2 parts on PDR

In the language of the people, what we do at the Zeytoonian Center is work with people to resolve their disputes without going to court and without engaging in a process known as litigation.  We use different approaches like mediation, collaborative law, conciliation, case evaluation and our own Integrated Dispute Resolution (“IDR”) to help people solve their problem and we tailor that approach to the specific situation and circumstances of the people in that particular dispute.

In our materials and writings and presentations we make, you’ll hear three different acronyms thrown around:  “ADR”, “IDR” and a new one that we are going to start using now which will take the place of ADR, “PDR”.   Lay people get annoyed when lawyers talk in legal jargon, and rightly so, so I want to use these next two blog posts to explain what each one is, what each one means, and then ask you to join us in changing their meaning to reflect your interests and replace ADR with PDR.  We’ll explain what PDR is in the next blog.  We’ll save IDR for another blog post.

ADR stands for alternative dispute resolution.  ADR has included processes like mediation, arbitration, collaborative law, conciliation, etc.  Historically, lawyers have viewed ADR as the alternative to litigation.  As such, litigation has been the process of choice for lawyers.  In some instances, usually because it’s stated in the terms of a contract, businesses will use arbitration instead of the courts. Read the rest of this entry »

A dispute was swirling around a man and his followers who were promoting an alternative way of living, different from the norms of their time.  The man had just been betrayed by one of his insiders and the dispute was about to come to a head.  As authorities came to arrest him, a physical confrontation between sides broke out, but was quickly diffused by the man’s unconventional intervention between the parties.  Before it could escalate, the man not only stopped the fighting, but reached out and healed someone on the other side.

The confrontations in the Garden of Gethsemane offer a classic modeling of non-adversarial dispute resolution.  While rooted in Christian spirituality, the events have a universal message: It is possible for one to be zealous in holding his position or defending a right, continue to be an advocate for one view and stay the course with respect to pursuing one’s interests and goals, without taking up the fight.  And in the process, one may not only be able to treat those on the other side with respect, but do some healing. Read the rest of this entry »

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.

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It’s great that there are now two new shows which focus on mediation as an alternative to the court process.  One is Fairly Legal (Thursday at 10 pm EST on USA Network); the other is Harry’s Law (Mondays at 10 pm EST on NBC).

Fairly Legal’s premise is the use of mediation to resolve disputes rather than going to court and fighting through a litigation process.  The lead character, Kate Reed, is a lawyer who walked away from the litigation side of the profession to become a mediator.

Episodes I’ve watched have portrayed employment, intellectual property, divorce and criminal cases resolved by the creative intervention of the mediator.  At the end of the February 24 episode, Kate gave a presentation to a room full of lawyers on the advantages of mediation over court-based litigation, making the case we have been making -  it saves time, saves money, saves relationships, can be more creative in coming up with good solutions and is confidential.

Harry’s Law is a law show with a twist.  The lead lawyer, played by Kathy Bates, runs her law practice out of a shoe store.  This resonates with me because I can envision combining a dispute resolution practice with a breakfast and lunch restaurant – my ultimate goal.

The February 21 episode was on point for two reasons:  It presented two cases, one showing in a compelling way how mediation can be used effectively to resolve a neighborhood gang dispute and the other showing in an equally compelling way how a court-determined verdict fell so short of solving the problem in an employment dispute.

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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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(Third in a series on the workplace)

Last week I had the opportunity to hear a brief presentation by Julian Tynes, the newly appointed Chairman and Commissioner of the Massachusetts Commission Against Discrimination (MCAD), along with MCAD Commissioner Sunila Thomas-George and other members of the MCAD staff.   Chairman Tynes was part of a panel at the 13th Annual Employment Law Conference, sponsored each year by Massachusetts Continuing Legal Education (MCLE) in Boston on December 10.

Commissioner Tynes’ purpose, along with that of his panel, was to update employment lawyers on recent developments, changes, procedures and recent discrimination case decisions at the MCAD.  One initiative that resonated with me personally as a father and former custodial parent was the suggestion that the Massachusetts Maternity Leave Act be changed to become the Massachusetts Parental Leave Act, be gender neutral and give fathers the same right as mothers to take work leave to care for children.

But as a mediator and employment lawyer who represents both employers and employees, what struck me about the MCAD Chairman’s message were three things:  His level of enthusiasm, passion and commitment that was reflected in his message, his taking time to set an example and first thank many of the MCAD staff who was present at the conference, and his view of the work that the MCAD and discrimination lawyers do as working together toward achieving a shared goal – that of eliminating discrimination from the workplace.

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