Urging business and transactional lawyers to take some dispute resolution (DR) training and add some DR expertise to their toolbox of legal skills, Michael Zeytoonian and Jeffrey Fink presented a talk on DR to the Business Lawyers Network (BLN) at its monthly meeting on June 14. The meeting was hosted by Howard Zaharoff and Scott Connolly of Morse Barnes-Brown Pendleton at the firm’s Waltham office. Fink and Zeytoonian are both experienced DR practitioners, both representing parties in DR processes and both are also neutrals.
Jeffrey Fink focused on the importance and value of dispute resolution clauses in contracts as a proactive way to discuss with clients how a dispute will be resolved long before any disputes arise. He pointed out the perils of not addressing which DR process to use in business contracts, offering anecdotals on mistakes when clients use boilerplate contracts.
Fink also stressed the vital need for lawyers to fulfill their ethical obligation to educate clients on the various DR options available to them so that clients will be able to make informed decisions on which process would be best to use in their specific situation.
Michael Zeytoonian echoed the need to make sure the clients choose the right process for their needs and their situational facts. He urged lawyers to conduct a process assessment with potential clients before they begin any course of action, focusing on client factors such as these:
- How quickly do they need the matter resolved?
- How importance is the relationship between the parties in the dispute?
- Is confidentiality important?
- Do they want to maintain control over the decision-making as to the result?
- How draining will litigation be on their resources, energies and emotions?
- What is their level of risk aversion?
- How much control do they want to have over the process and scheduling?
Zeytoonian also discussed the basic elements of Collaborative Law and how it worked to resolve business or employment disputes. He stressed the flexibility and adaptability of Collaborative Law so that it can be tailored to the needs of the parties in terms of scheduling, pace and design. He stressed the value of collaborating on developing the best solutions rather than adversarially preparing for a trial that rarely (less than 3% of the time) happens.
He also discussed the early mediation model as compared to traditional mediation that is done late in the litigation process and essentially as an alternative to a trial. He noted that early mediation can be designed to incorporate the exchange of necessary and relevant information into the mediation process, and can use three shorter sessions that are well planned rather than one full day session. He noted the inherent pressure built into the full day mediation model to agree to a less than optimal settlement before the day ends, rather than leave without one.
The Business Lawyers Network is a group of Massachusetts business and small boutique firm lawyers that meets monthly for an educational program as well as to provide members with an opportunity to develop business relationships and refer business to each other.