Dispute Settlement Counsel

Posts Tagged ‘Preserving Relationships’

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 »

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. 

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Have you ever thought negatively about a person or a situation based on information you thought was accurate but which turned out to be wrong?  I remember thinking certain things about another guy I went to school with and for over two years, I didn’t talk much with him except to be polite and civil.  Something triggered an opportunity for him and me to go out for beers or coffee and just talk about things that bothered us about each other.  It turned out both of our beliefs about each other were misconceptions, based on perceptions and assumptions we had never checked out until then.  We became the closest of friends and still are today.

This kind of thing happened over the weekend in my church.  There was some missed communications between people and some of the parishioners started to run with that, believing that what they perceived as a change in plans was orchestrated by what they believed to be a small but controlling group of parishioners.  Not being a big fan of small controlling groups in any organization, let alone in a church, I could relate to this view. But then I learned that one group perceived that I was a part of the small controlling group.  It dawned on me at that moment that the person or persons carrying that perception didn’t really know me very well.

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This is always a time of year that my creative juices get churning and a time that there’s so much going on beneath the surface.  This week is no different.  It’s funny that St. Patrick’s Day almost always occurs during Lent, a convergence of one of the most visible expressions of Irish culture and tradition with one of the core disciplinary practices of Christian spirituality.

Being a little bit Irish and a little more Armenian, it’s also a time when my minority vote trumps the majority vote in my internal ethnic co-existence and eating corned beef and cabbage is allowed as an exception to the traditional meat fast during the forty days of Lent.  My Irish and my Armenian ethos, both deeply aligned with the underdogs in life, celebrate a minority victory.  Both the Irish and the Armenian in me smile; each acknowledging the gift of the other, each eager to share something with the other and both always appreciating the value of a good meal and a good time around the hearth. Read the rest of this entry »

I’m taking the occasional break from dispute resolution to talk about other things, like restaurants or movies this time, in the spirit of St. Valentine’s Day.

Last time I talked about restaurants, specifically all the great breakfasts places in Gloucester.  This time, being in the midst of all the Academy Award nominations and all, I’ll focus on movies.  There was a powerful contrast this year between a great one, The King’s Speech, that offered up an unlikely lesson in humility and an annoying one, The Social Network, which reminded us of what character flaws like arrogance, inflated egos, absence of loyalty and misplaced senses of entitlement look like.  (Is there any sense of entitlement that is not misplaced?)

Both these movies are nominated for an Oscar. One deserves the award as it took a fairly mundane topic (speech impediments) and made it inspiring.  The other movie should not have been nominated, as it took what should have been a great entrepreneurial story and turned it inside out to show us its uninspiring underbelly.   The Social Network was an average movie that rode the crest of Facebook’s current popularity.  It also portrayed Harvard as a place that breeds arrogance over grace, intelligence but not wisdom, and that absurd sense of entitlement.  I hope for his sake that it’s not an accurate portrayal of the Facebook creator.  If it is, the dude is doomed to the saddest of lives – one without any true friends or a soulmate.  If there is a message to this movie, it is that boatloads of money and fame don’t get you happiness and peace of mind the way a loyal, trusted and close friend or a good woman will.

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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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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.

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