I believe in the value of Dispute Resolution Alternatives (DRA) for clients that are in disputes. I believe in them because I have used them, seen them work well, and because they make so much sense. I believe in them because they are not adversarial by nature. They do not divide, separate and drive people apart; instead they work to bring people together, reconnect and restore a good situation. I believe in them because they are built on the premise that when people – clients, lawyers, neutral facilitators, mediators and experts – intentionally and by design collaborate in good faith toward finding a good solution, they will find a better resolution than when they fight each other until one side loses.
I’d like to share with you how and why I evolved to this view of how to resolve disputes and the value of alternative ways of doing so:
After 11 years of government service litigating for the County Attorney’s Office (Westchester, NY) and the NY Attorney General’s office, I moved home to Massachusetts and into private practice in 2001. I enjoyed government work – trying many cases, strategizing in litigation, writing and arguing motion. I was fortunate to work on all kinds of truly interesting and meaningful matters – child abuse, civil rights, environmental, negligence, employment, labor, consumer protection and discrimination. One cumbersome part of litigation – discovery – was not enjoyable. Discovery was increasingly overused, inefficient and unnecessarily drained our clients’ resources, energies, time and money. I am not a big fan of inefficiency or needlessly draining clients’ resources.
Government service also gave me the chance to work with outstanding public servants at many levels – problem solvers working for the greater good. When I went into private practice, many of our clients were and still are small, closely-held or family businesses, mission-based organizations, families and individuals.
When I started representing our private clients as a litigator, as much as I liked trying cases, I soon realized three things: (1) the opportunities to try cases were far less in private practice than in government work (less than 3% of cases that are filed with courts go to trial); (2) discovery is still overused, inefficient by nature and a largely unnecessary drain of clients’ time, money, resources, energies and emotions; and (3) litigation has a devastating impact on most small business and non-profit clients. It can cripple them, destroy important business and family relationships and drain resources. It also fails to provide clients the flexibility, efficiency and creativity needed to reach the best resolution, one that satisfies most, if not all, of their interests.
These factors motivated me to seek better ways to serve our clients when litigation was not a good fit for their situation. If we lawyers are going to best serve our clients, we need to know about and provide other ways to resolve disputes and advise clients accordingly to ensure that they use the right approach for their specific circumstances. For that reason, I trained in Mediation, Collaborative Law, Ombuds Services and Conciliation, and we incorporated these into the approaches and process options we offer to clients.
These trainings were eye openers on many levels. They uncovered the critical importance of counseling our clients on the dispute resolution alternatives (“DRA”) available so they can make a well-informed choice of which DRA process is right for them. The approach we take with our client from the outset of the dispute must be guided first and foremost by what is in our client’s best interests. It is up to us as lawyers to temper and balance our clients when their emotional desires are driving them toward a course of action that won’t serve them well. There is a time and a place for litigation, for arbitration, for mediation, for collaborative law and for ombuds work. One of our responsibilities is to make sure our clients use the right approach. The late Frank Sander, a professor at Harvard Law School and a luminary in the field of dispute resolution, recently honored by the Massachusetts Bar Association for his incredible body of work, helped coin a phrase for this vital task: “Fitting the forum to the fuss”.
The value of our clients choosing the right DRA for their situation can be measured by the thousands of dollars in legal fees saved, months and years of their time saved, keeping things that need to be confidential private, preventing the draining of their emotions, resources and energies and preserving important business, organizational or family relationships. The right approach also avoids the opportunity costs of choosing the wrong process. Most thoughtful clients wisely choose a lawyer who has expertise in the area of law in which their dispute falls, but they are not equally careful about choosing the right DRA for their situation. By navigating that choice with our clients, lawyers provide them great value.
As a trial lawyer, Abraham Lincoln discouraged litigation and encouraged settlement, pointing out that the nominal winner in litigation is often a real loser in fees, costs and lost opportunities. I believe in DRA because they give lawyers the opportunity to work with our clients to do our best and most creative work and together achieve our highest good. Acting on these beliefs, Dispute Resolution Counsel, LLC does not use adversarial approaches to disputes, and encourages its clients to first go through the vital process assessment step and consider all DRA carefully before choosing a lawyer and deciding on a course of action.
In the series of blog posts that follows this article, I’ll elaborate on the value of some of these DRA – Early Mediation, Collaborative Law, Settlement Counsel and Ombuds work – gives to clients and people that use these approaches. This is not an attempt to evangelize clients or lawyers that any one of these is the best, or better than any other. What determines which process is better and right is the specific dispute situation for which it is being considered.