Dispute Settlement Counsel

Posts Tagged ‘Preserving Relationships’

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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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.

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Like discovery, motion practice as we now know it, is not very sustainable either. Motion practice can be a useful tool used to streamline litigation and narrow the issues. Still, within the parameters of civil procedure, it can be a time consuming and costly part of litigation. Often, its purposes can be accomplished by adopting the practice of transparency that is inherent in the nature of Collaborative Practice.

Consider this alternative: Once an initial legal analysis is done, some very open and transparent exchanges of positions and legal arguments between the lawyers can and should take place. Assuming both lawyers assess the case well, they can agree to be open and transparent about their clients’ respective claims and legal positions. This can be helpful in crystallizing both the basis for and the focus of the negotiation and can move the parties to the negotiating table sooner.  Read the rest of this entry »

Another difference between Collaborative Practice (“CP”) and litigation is the way information is viewed and used.  Because CP is not adversarial or positional, lawyers do not have to worry about hiding or minimizing the importance of harmful information or highlighting or over-emphasizing favorable information as they would in litigation.  Remember, we are not in a winner vs. loser model in Collaborative Practice; we are in an interest-based or principled negotiation model (think Roger Fischer’s “Getting to Yes”), which will hopefully produce a win-win (think Stephen Covey’s “Seven Habits of Highly Effective People”) outcome. The more we all know about what we’re trying to do, the better it is. Read the rest of this entry »

“We seek out lawyers that are practical in their approach, efficient in their time and billing and are trustworthy.”

“Nothing highlights a cost like an unexpected surprise.”

“At the end of the day, choosing and working with outside lawyers is all about relationships and trust.”

These were some of the insights offered by a panel of in-house counsel from several area corporations shared some of their insights on what they look for in hiring outside counsel. The panel was part of a Breakfast Series hosted by Massachusetts Lawyers’ Weekly held in Boston at the Omni Parker House yesterday (May 8 2009). Corporate counsel were invited to share their thoughts on marketing legal services, fees and what ultimately gets lawyers hired, or replaced.

In response to the economic downturn, but also indicative of a shifting ground, in-house counsel were clearly signaling that lawyers need to be more responsive to the changing landscape of the business community. These business voices also reflected a desire, in most situations, for lawyers to approach disputes as problem solvers. They also signaled that the old models and practices of runaway billable hours and inefficient dispute resolution are quickly becoming outdated. They noted that their companies seek out the value proposition lawyers can offer.    Read the rest of this entry »

Business owners, managers and entrepreneurs have confirmed some core beliefs of the Zeytoonian Center for Dispute Resolution. They are telling us that the most important element in resolving disputes is preserving important business relationships! They are also telling us that the notion of “winning at all costs” is among the least important considerations in dispute resolution. That is encouraging news and helps to confirm our beliefs about what is critical in dispute resolution and that non-adversarial processes are more responsive and better suited to meet the needs of those involved in disputes. Read the rest of this entry »

Part IV. Ability to design solutions for the specific situation February 14, 2009

(Happy Valentine’s Day!)

Here’s where ADR really separates itself from the limitations of arbitration and litigation and flexes it’s “think outside the box” powers. When there are several interests to be satisfied in a dispute and it’s about more than money, that’s usually a good indicator that your dispute, your situation and set of circumstances needs the creativity and flexibility of ADR processes like collaborative law and mediation.

Courts are designed to really only do two things: 1. Order one party to pay another party money (monetary damages), and 2. order one party to either stop doing something or direct a party to allow the other party to do something (injunctive relief). In business disputes, the court’s ability to quickly intervene and either stop a party from taking an action or allow a party to continue an action without interference can be essential and that is something most ADR processes are not designed to do. But just about everything else, including money payments, can be addressed by ADR methods and as we have already written about, addressed more efficiently and without the collateral damage of litigation. And here’s the fun part: ADR can be very creative, innovative and situational.   Read the rest of this entry »