Using and designing processes that are responsive to the needs and circumstances of clients was a recurring theme for leading dispute resolution professionals during this year’s Dispute Resolution Conference of the American Bar Association (ABA), held in San Francisco from April 20-22. Many workshops focused on the expansion of approaches for resolving disputes. One workshop specifically focused on the creation of new, hybrid or cutting-edge dispute resolution (DR) processes that offered participants insights on how and when to create hybrid processes and urged earlier involvement of neutral experts.
Two Massachusetts neutrals – Michael Zeytoonian of Dispute Resolution Counsel, LLC, and Conna Weiner, a mediator and arbitrator in Boston, joined Carol Ludington, a damages expert and long-standing ABA leader from Minnesota, in a panel presentation on April 21. The panel urged early use of the DR processes of Mediation and Collaborative Law, and early consideration of expert information on the potential damages in cases.
“If it’s your job to eat a frog, it’s best to do it first thing in the morning,” Mark Twain once said. Relating Twain’s insight to the need to address damages early in the dispute resolution process, Carol Ludington, an expert with an extensive work history in the area of damages from St. Paul, Minnesota, talked about the advantage of this approach. Ludington showed how early attention to damages issues can facilitate case management and lead to better resolution of disputes. She noted the importance of getting an early and accurate read of the value of claims and that knowing the case’s worth in the beginning phases of either litigation or dispute resolution can help shape a more efficient approach to resolving the matter. Carol pointed out that knowing the scope of damages early leads to more creative process design. She stressed the value and heightened credibility of the neutral expert as the provider of the information needed to resolve the matter.
“We see too often the situation when parties start off on a litigation path, and then about two years into the process, reassess the situation, realize it is taking too long and is too damaging, and then decide to settle the matter,” Michael Zeytoonian noted. A former litigator who is now a mediator and who also represents clients as their Settlement Counsel or Collaborative Counsel, Zeytoonian stressed the importance of designing the process to suit the situation of each specific dispute, and encouraged practitioners to creatively craft hybrids when necessary. He spoke about the efficiency of processes that are used instead of litigation, and the value that these early, well-designed approaches give to clients. Zeytoonian also gave an overview of Collaborative Law, pointing out its cost and time efficiency and showing how it prevents the draining of clients’ resources, time, funds, emotions and energies.
Drawing from years of experience as in-house counsel as well as outside counsel, Conna Weiner offered her unique perspective. Weiner is now an arbitrator and mediator in Massachusetts. “I wish I was better aware of these processes like Collaborative Law or the early use of neutral experts when I was in-house counsel. I think we could have saved our clients a lot of money, time and collateral damage coming from protracted litigation,” Weiner noted. She highlighted the need to manage a dispute well, starting with the inclusion of dispute resolution clauses in contracts. She showed the value of introducing and using tools and processes that are available to clients and their lawyers, and discussed the need to intentionally streamline and carefully craft arbitrations so they are efficient and satisfy the clients’ needs.