Zeytoonian new Director of ADR at the Massachusetts Commission Against Discrimination

After 10 years as founder and principle of Dispute Resolution Counsel, LLC, Michael Zeytoonian has accepted a newly created position as the Director of Alternative Dispute Resolution (ADR) at the Massachusetts Commission Against Discrimination (MCAD), joining the MCAD in June, 2019.

This new role at the MCAD is the perfect challenge for Michael, combining work in his favorite area of law—employment law, and specifically discrimination and harassment matters—with the use of non-adversarial ADR processes such as mediation and conciliation to help parties before the Commission resolve their disputes in a way that best satisfies the interests and needs of the parties. Zeytoonian’s duties include overseeing and developing the ADR Unit at the MCAD, and overseeing the Commission’s mediation and conciliation efforts in its Boston Headquarters and its Worcester, Springfield and New Bedford regional offices.

“This newly created position reflects the MCAD’s commitment to a strong and vibrant ADR unit,” said MCAD Chairwoman, Sunila Thomas George. “Our goal is to help carry out the MCAD’s mission of eradicating discrimination in the Commonwealth by offering quality mediation and conciliation processes with a team of expert mediators,” Chairwoman George added. “It is imperative that agreements that arise from MCAD mediation not only satisfy the needs of the parties in the case, but also serve the public interest by obtaining the commitment of the Respondent party to be proactive in taking appropriate measures to address and prevent discriminatory behavior in all of the arenas within MCAD’s  jurisdiction: at home, at work, in public places, school admissions, lending and credit,” the chairwoman said.

Working to prevent discrimination is both a personal and professional concern for Zeytoonian, who has spent much of his legal career on employment issues as well as educating people about non-adversarial and creative ways to resolve disputes. “Like many members of ethnic groups who suffered as victims of discrimination, my family history is one that includes the devastating losses resulting from the attempted genocide of the Armenian people by the Ottoman Turkish government,” Zeytoonian  said. “Discrimination is not only wrong and unjust, but it also robs us all of the richness of different ethnic, racial and religious cultures, traditions, arts, rituals, histories, music, language and stories of the diverse members of our country’s social fabric.”

Zeytoonian is energized about this new work and its positive impact. “Every step we take toward eradicating discrimination also contributes to restoring richness and depth to our civilization,” he notes. “We hope our work helps to heal those who have suffered discrimination or harassment, and also helps to restore the inherent goodness of the workplace, the places people live and the community as a whole. That is what makes our work at the MCAD important and satisfying for me,” he closes.

About the MCAD:

The Massachusetts Commission Against Discrimination (MCAD) was established in 1946 as the Commonwealth’s chief Civil Rights law enforcement agency charged with the authority to investigate, prosecute, adjudicate and resolve cases of discrimination. Led by three Commissioners, one who serves as chair, the MCAD enforces the Massachusetts anti-discrimination laws in these areas Employment, Housing, public places, school admission, lending and credit. The MCAD protects individuals in numerous protected categories such as their race, color, creed, national origin, age, disability, gender, gender identity, and sexual orientation.

MCAD is an independent agency of the Commonwealth, which is funded by the U.S. Department of Housing and Urban Development (HUD), the U.S. Equal Employment Opportunity Commission (EEOC), the Commonwealth of Massachusetts, and other earned revenue.

 

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Re-imagining Collaborative Law, as well as dispute resolution itself

I first heard about Collaborative Law (CL) in 2002 as it began to spread around Massachusetts. It was an inspiring, rational approach to resolving disputes and it was good getting to know and learn from local people involved in teaching, promoting and using CL. It was also great to get to know like-minded lawyers nationally and beyond through joining the Massachusetts Collaborative Law Council (MCLC), the International Academy of Collaborative Professionals (IACP) and later the Global Collaborative Law Council (GCLC) to further train and grow in my understanding and use of CL. For a smaller minority of us lawyers who used CL in business, employment, probate and other non-divorce disputes, this was a road less traveled.

Like any new movement, there were many discussions about CL: What should its name be? Is it an area of law like employment law or a “practice” like facilitative mediation? What is CL and what is not CL? Many, like new converts, became very dogmatic about CL, insisting that the CL process needed to include certain key elements. There were debates about the essence of CL, its sine qua non, and the need to clarify CL’s “brand”; all important considerations.

As CL grew, different “models” evolved: the original “four-way meeting” model, the deluxe “interdisciplinary team” model, and other hybrids and variations that were used in the shadows of “dogmatically correct” CL. Like organized religions that sometimes lose sight of their spirit when they become larger denominations, many in the CL movement focused on following the letter of the law. Some who were more led by the spirit of CL gave it some breathing room to organically evolve further in the approaches they used, allowing it to be flexible, agile and creative. Those CL tinkerers and explorers were guided more by the essential principles and approach of CL, rather than hard and fast protocols, models and rules. Theirs was a road even less travelled.

Nearly 30 years have passed since CL was initiated by a single lawyer in Minneapolis, and CL finds itself at a critical crossroads. In recent years, some CL groups have experienced a decline in membership and in attendance at programs and meetings. Also missing are the new ideas, some luster and the vibrant spirit of setting idealistic, big, hairy audacious (“think big”) goals within the CL movement. While there are exceptions like the new hotbed of CL in North Carolina, much of the earlier energy, passion and enthusiasm have not been seen, felt or expressed as they were in the go-go years from 1990 to 2015.

Are there other reasons for the reduced numbers? Is the “honeymoon period” over? Is CL, outside of its increased use in divorce matters, a passing trend? A solution in search of a problem?

While there may be some truth to these, I don’t think the recent trend signals the demise of this worthy movement, but rather is a harbinger of a reinvention of CL. The approach to dispute resolution (DR) reflected by CL, especially in non-divorce disputes, has been ahead of its time, but certainly one for which the time is quickly coming.

Can we consider the possibility that the key to CL’s future and greater success as well as a reason for the temporary slowdown is because it may have set goals and identified a sine qua non that weren’t big, audacious and inspiring enough to energize people to act with stronger zeal?

What if the fault line CL draws between litigation and CL is in the wrong place? Imagine litigation not as an enemy or competitor of CL but rather a fellow traveler, a potential subset of the Collaborative approach. The seminal question is not which process parties choose to resolve disputes, but rather whether the approach committed to by parties in the dispute is adversarial or collaborative in nature. Is the goal to win and beat the other side (there must be a loser in order to have a winner in an adversarial contest) or to solve the problem by resolving the dispute quickly, efficiently and completely. If people take the adversarial/win-lose approach, it really doesn’t matter whether the parties use CL, arbitration, mediation or litigation. The zero-sum game goal dictates what the process must do and more importantly what its character will be. Likewise, a collaborative, non-adversarial approach will allow the goals, interests and needs of the parties to dictate what to do and how the process should be designed. A Collaborative Approach can include (baseball-style) arbitration as part of its process; it can use certain elements of litigation (injunction; declaratory action) as part of it, as long as the arbitration and litigation components serve the Collaborative Approach and are consistent with it.

The original stated mission of the IACP was “to transform the way disputes are resolved worldwide.” If CL wants to achieve success on the scale of Apple and truly transform the way all (not just divorce) disputes are resolved worldwide, it cannot limit itself or promote itself as an overly dogmatic dispute resolution process. Apple would not have succeeded if it promoted itself as a maker of great computers or dwelled on how much better their computers work. Apple didn’t limit itself by saying “we make more efficient, less expensive, less draining and more creative computers than the others (making its potential audience yawn and look elsewhere). It reached out, touched people’s emotions and attracted their attention, so that people identified with Apple’s message: Think Differently.

If CL were to follow Apple’s lead, CL’s message would not be that it is a type of “Law”, a type of “Process”, or a type of “Practice”, but that it calls on all of us – lawyers, clients and neutral professionals – to approach disputes in a way that is completely different from the others. It has to be responsive and perfectly aligned with what people in a dispute are seeking, thinking, feeling, desiring, hoping for, wanting and needing. It is an approach that achieves their goals and satisfies their needs, including their emotional needs! No one in a dispute wondering what to do or what kind of lawyer to hire cares about or is energized by CL’s stated sine qua non – the “disqualification clause” (a rule that if the CL process does not result in a resolution, the CL lawyers cannot continue to represent the parties but must withdraw from representing their clients in any future litigation or arbitration). For those people seeking to have their problem solved and their needs met – including their emotional needs – this notion is a non sequitur at best, irrelevant at first glance, a non-starter and a turnoff at worst. It doesn’t tell people anything about the approach itself, but only about what happens if things don’t work out. The potential market audience doesn’t have the attention span or interest to keep listening to understand why the disqualification clause is important. The opportunity has passed.

The saving grace here is the awesome power and creative beauty of the essential idea of the CL along with its principles and elements! If we can redefine, reimagine and recalibrate CL for its grander mission and larger scale, we make it relevant and appealing to those who seek solutions in a way that also resonates with their “Why”, as Simon Sinek suggests. Any declarations that litigation or arbitration are inherently bad processes and enemies of a collaborative approach are unnecessary judgments. Think of litigation and arbitration like nuclear energy; how we use them determines whether they will be productive or destructive, serving to connect us or divide us.

CL People often talk about the “CL paradigm shift”. Can we allow a different view of this paradigm shift to percolate in our minds a bit?  If the fault line was misplaced, the paradigm shift may have also been defined too narrowly. If the fault line is shifted to the choice between adversarial and non-adversarial approaches, then the paradigm shift goes beyond process and to include own personal, professional and hopefully internal transformation from adversarial warriors to non-adversarial, collaborative problem solvers. This shift is not limited to the way we design the process but also what is happening inside of us – in the mindset of each lawyer and CL professional. We can be trained in CL or mediation, follow the steps and use the models faithfully, but unless we feel and are open to the call to internalize the collaborative, problem solving mindset and approach, we are susceptible to defaulting back to what we were taught in law school, reinforced by the society around us – the adversarial mindset of we vs. them, and of “I’m right so you must be wrong”.

The paradigm shift suggested by CL was not idealistic or audacious enough to attract the massive following it deserves. It was devalued and on too small a scale because the default line was set in an unimportant place, instead of in a game-changing place. Very few lay people care about a shift from one legal process to another and not enough lawyers get pumped up about this. CL’s proposed paradigm shift is encouraging, interesting in theory, exciting in training workshops and discussions amongst practitioners, but not powerful enough emotionally to either move clients to demand it or inspire enough lawyers to utilize it and more so to internalize it. In the words of the great Jerry Maguire, “That is not inspiring.”

As a result, the trembling on the Richter scale of the legal profession was not powerful enough to throw lawyers out of their comfort zones and into the earnest pursuit of achieving our highest good; it only shook the ground enough to get around 8,000 practitioners to make an adjustment in their practice and add new CL tools and models to their toolboxes. What was missing was a quake seismic enough to convince us that it’s time for a different kind of legal toolbox!

The question we lawyers as well as the clients we serve need to ask ourselves at the outset of a dispute is this: Are we going to approach this dispute in an adversarial, zero-sum game way, or are we going to work together collaboratively as problem solvers to resolve this dispute? This is a challenge vital enough to get people aroused and thinking about why we do what we do and strong enough to define what the parties, their lawyers and every other professional involved in the case will do next. It is powerful enough to make us rethink who we are and what our profession is called to be. Either the goals, interests and needs (GIN) of those we serve dictate that the approach will be collaborative and problem solving and will be able to mold and shape a well-tailored solution, or the choice to use an adversarial process will render those goals, interests and needs incidental byproducts and likely collateral damage in a “take no prisoners” war.

This is the choice to be made. If we choose the Collaborative Approach (non-adversarial), we will apply the principles and elements of CL and utilize them in ways that are appropriate and responsive to the goals, interests and needs of the parties. Elements of other DR processes might also be utilized if they contribute productively to the goal of achieving the best result. The limitations of the dogmatic CL model can be removed so that the collaboration of the parties, lawyers, neutral experts and other professionals can breathe freely, adapt and respond to every interest and need and yes – change the way (all kinds of) disputes are resolved worldwide.

I believe that people, including those in the legal profession, DR community and the clients we serve, are inherently good, want to achieve our highest good and do our best work to come up with excellent solutions. I think that the spirit of the Collaborative Approach arose from this inherent quality we all have, an inner voice that told us that the approaches we were taking to resolve disputes weren’t good enough. When the fault line is reset in a more impactful and inspiring place and the paradigm shift is far more prodigious, the time for choosing the principles and applying the elements of a Collaborative DR Approach will have come. It will answer our desire to make an important choice, one that both reflects our respective “whys” and also helps us define ourselves, not only as lawyers and as a profession, but more importantly, as human beings.

People will come, Ray; people will most definitely come.”

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Green Book’s insights into a deeper diversity

Abraham Lincoln had a simple approach to achieving diversity: “I don’t like that man. I must get to know him better.”

Recently, my wife and I saw the movie Green Book, which has since won an Oscar for best movie of the year. The movie presents the true story of an episode in the life of Dr. Don Shirley, a talented African-American classical/jazz pianist and composer. Its focus is on a concert tour Dr. Shirley chose to do in 1962 in the southern states at a time that segregation was very much a part of the cultural ways of the Jim Crow era. Knowing he would need a strong and street tough driver and bodyguard for this eight-week tour, Shirley hires Tony “Lip” Vallelonga, a working class Italian from the Bronx whose work history includes several stints as a New York City night club bouncer.

It’s an unlikely duo for modeling how to accomplish diversity, and both characters let the audience and each other know that right away. They don’t hesitate to state and display their negative views and thoughts about each other. Their dialogues reflect the biases they have and the assumptions they have made about each other and their respective ethnic/racial backgrounds. Their starting point is one of not liking each other and not respecting each other. But they do recognize that, at least for this eight-week tour in which the two of them will be traveling in a car together, they need each other. Vallelonga needs the work, for which he will be well paid, and Shirley needs the presence and protection that someone like Tony can provide him. At the beginning of their road trip, the extent of their hopes and expectations is probably limited to doing what it takes to work together and get along.

They could have gone about their business and done their jobs, tolerating each other and they started out doing just that: Tony did his job and Shirley paid him for his work. At the end of the tour, they could have both come out and made a statement about practicing diversity, and then gone back to their very separate and distinctly different lives and environments. Shirley could have said that hiring Vallelonga was an act of racial, ethnic and socio-economic diversity. Vallelonga could have come away from the assignment making a similar claim about working with Shirley.

But Tony and Dr. Shirley don’t stop at just doing their jobs. They choose to go further. We might see this as the deeper level of diversity. It causes us to think about what the goal of diversity is; what interest(s) does this kind of effort serve? Ironically, the week before I saw the movie, a group of dispute resolution colleagues were discussing doing a presentation about the role and impact of diversity and bias on dispute resolution efforts and the question came up: What do we mean by diversity? Is it about taking steps to hire or include more members of historically disadvantaged groups into the mainstream of a profession or group? Or does it go further, urging us all to inquire further about people who are not like us; to learn about, appreciate and respect those who have been subject to recognized discrimination. Can it ignite within us the desire to explore – with a curious mind and heart – the realities of other lives that are different from our own?

To their credit, Shirley and Vallelonga went beyond just bringing one into the other man’s world. The beauty of this movie was not the minimalist goal that these two men were able to tolerate each other for eight weeks and carry out a challenging task. It was more so that they chose to embrace the next step – building a relationship with each other despite their differences and maybe because of their differences. To do that, they had to challenge each other, peel away and look behind the other’s assumptions and their own assumptions, and be willing to get to know and appreciate the other person’s reality better. They were able to break down the mental, physical and emotional barriers. While this diversity exercise may have been forced upon them by circumstances in the beginning, at some point they intentionally chose to engage and seek to understand what it was like to walk in the other person’s shoes. When they did that, they could truly feel empathy for one another, go beyond what was “required” of them and step up to caring about, respecting, appreciating and including one another.

Nelson Mandela offers this kind of roadmap for achieving diversity: “If you want to make peace with your enemy, you have to work with your enemy. Then he becomes your partner.” When we go beyond the step of “working in the same company or profession” to really working at mutually getting to know each other better, appreciating the richness of another culture, we can melt away prejudices and prevent discrimination. If we can create environments that allow for these inquiries to happen organically, we help nurture the spirit of diversity, the interests behind the position. That would seem to be the deeper, transformative goal of diversity as well as dispute resolution, not only helping us resolve discrimination-based disputes, but eliminating the underlying discrimination itself.

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Before you dive into your dispute, what are your GINs and what’s the best way to satisfy them?

Recently I noticed an online request on a network’s posting system seeking lawyers with experience working on disputes within community non-profit or religious organizations. The situation described involved potentially inappropriate behavior by a member of the organization that may have adversely impacted another member. Besides these two people, the entire organization is also a stakeholder, as the incident raised the issue of what is and what is not acceptable behavior within its culture.

The initial responses to the request recommended lawyers who were familiar with this area of practice. Another early response raised a question of whether or not a state agency had to become involved. And the matter was off to the races. The likely next developments could be sides being drawn, allegations made, complaint filed, an inquiry into blame, a finding of fault, a determination as to damages to the victim and a punitive response to the wrongdoer.

This has become the typical approach and response of our society today: Something is believed  to be wrong so we look to blame someone, line up people on each side, go to battle in the sometimes blind pursuit of “justice” without giving the proper amount of thought to the direct and indirect collateral damage of this approach.

There’s something missing in this reaction that jumps right to bringing in lawyers. It seems premature. Is our goal to fixate on the past event(s), establish blame and make someone pay, with little thought of the future or of curing the situation that led to the conflict? Or do we first focus on solving the problem so that the future situation better when we are finished addressing the issue than when it first surfaced? Are we treating the symptoms or are we curing the ill? Are there larger concerns – organizational or even public interests here – beyond determining who wins and who loses?

In our haste, we may be skipping two vital initial inquiries:

  1. What are the goals, interests and needs (“GIN”) of all those involved?
  2. What is the best approach for achieving these goals, interests and needs?

A good friend of mine who is a marketing expert often suggests to her clients this starting point: In order to achieve your goal, you have to have one. That advice always stuck with me, so much so that it is one of the first questions I ask a potential client: What are your GINs (goals, interests and needs)?

As for the approach question, Stephen Covey referred to this inquiry as seeking the Third Alternative and finding the synergy shared by the parties involved. Buddhist thought would describe it as the search for the Third Way, a better way.

In today’s American society, when a difference of opinion, a dispute or conflict arises, we are programmed to immediately draw lines of division, “lawyer up”, and declare war on “the other side”.  We are quick to divide, separate and convert a problem into an adversarial contest, often on the basis of little more than a Tweet or a sound bite, before we have taken the time to think about it, dig a little deeper into the facts and put the single conclusory sentence into the bigger context from which the sentence of taken. If you are not one of “us”, you have to be one of “them”. One of the unfortunate by-products of the #MeToo era is the rush to judgment and the feeling of being compelled to take sides, sometimes on the basis of nothing more than a single stray remark, a set of incomplete facts or a picture from the past and no knowledge of when, why, how, where or for what purpose that picture was taken or the remark was made.

When something goes wrong, I think we can all agree that we want to fix it. If there’s a problem, let’s work to solve it. If we discover an illness, let’s work to cure it. If there are ways to prevent these disputes, conflicts and mistakes from happening in the future, let’s take the proactive steps to prevent them from repeating. All of us want the restoration of what is good where we see things have gone awry. We share some common ground here.

But let’s do this work of restoring things to the good by working together at it, not against each other. Let’s join our efforts in collaborations that tap into our collective talents, experience, intelligence and resourcefulness rather than pitting ourselves against each other. If we call in the professionals to help, let’s first reach out to those trained in helping people work together to solve problems – facilitators with the mindset of connecting, not dividing. When we chose the adversarial approach and fight against each other, our real GINs are replaced by the goal of beating the other side. We become “a house divided against itself [which] will not stand”.

Let’s start by agreeing on this: We are better, stronger, smarter, faster and more creative when we work together and pool our resources to satisfy our GINs in the best way possible.

Photo credit: Gage Skidmore

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Peacemaking: The fulfillment of the legal profession

Blessed are the peacemakers, for they will be called sons of God. – Matthew 5:9

Earlier this week my daily meditation focused on this Bible verse, spoken by Jesus as part of the Sermon on the Mount. The meditation narrative was a dialogue between the meditation author and his lawyer friend about the basic legal standard we learned in law school: “What would a reasonable man do?”

The lawyer explained that to win his case, he had to show that his client did what any reasonable person would have done in his place. The meditation asked where this “reasonable man” is these days, when it has become harder to come across reasonable people than finding a buffalo nickel. Today’s public debate has become a shouting match in which complicated issues are reduced to memorable sound bites, in which everyone is blaming the other and few people hold themselves accountable. In the political arena, our so called leaders belittle and oppose each other just because an otherwise good or reasonable idea was proposed by the other side. People are quick to anger and are driven by a desire to “demolish” their opponents, “destroy” their arguments and “win” at all costs. It is an atmosphere where a reasonable man, or one who can see both sides of the argument, is not only hard to find, but also has no role to play.

In this adversarial and partisan atmosphere, we have three choices as people. We can fight back with more anger, just pouring more fuel on the fire. We can withdraw from the world, go off the grid and distance ourselves from the fray. Or we can be peacemakers.

Jesus spoke to a society not very different from ours today: tyrants vying for power; corruption, greed and immoral behavior; terrorism; suppression of public discourse; political and religious scandals and disagreements; Jews vs. Gentiles, Romans vs. subjects, free men vs. slaves, rich vs. poor; those in power vs. the disenfranchised (women, foreigners like Samaritans, lepers, poor and homeless). His response was neither to fight fire with fire nor to withdraw – indeed he directly challenged the hypocrisies of those in power and the shortcomings of those around him. But he did so without being adversarial; indeed he admonished one of his followers for fighting back with a sword. Instead his response was what Stephen Covey would refer to as “the Third Way”, a better way, as a peacemaker with compassion and comfort for all people. Note that the notion of peace – shalom – was not a world of calm without disagreement, but the ideal of working toward one’s highest good. Likewise, the Arabic word – salaam – expresses a wish for the presence of all good things.

As mediators, settlement counsel and collaborative counsel working with people to help them resolve disputes in a non-adversarial way, holding ourselves out today as peacemakers is risky and probably bad marketing. Emotional clients seek revenge, a pound of flesh from their opponents, and want to beat the other side or at the very least get their “day in court”. They don’t often see beyond their “emotional due process” needs to recognize the value of legal counselors who advocate a reasonable, non-adversarial approach to achieving a good resolution. Our name-calling culture sometimes labels peacemakers as being weak or soft or unwilling to take up the “scorched-earth battle” to defeat an opponent who must be wrong simply because he/she is on the other side of the argument. Recently at a bar association holiday party, I suggested to a young lawyer that it would be good for her to train in Collaborative Law and mediation. Her response was that those things were for retired judges and older lawyers.

I have spent 25 years of my legal career litigating everything from child abuse, civil rights, discrimination, environmental, business, wrongful death, negligence and all kinds of employment cases to dog bite cases and disputes over $30,000 parking spots and condo rights. But in truth, the work of a peacemaker calls upon us all to be stronger, more centered, more patient, more flexible, more creative and more committed to reaching the best possible resolution than the exercise of fighting a zero-sum game, the latter of which ironically ends up getting settled 97% of the time. Dispute resolution work is more challenging, more likely to achieve the best result for all those involved, more likely to also serve the public interest, and restore that which makes for our highest good.

Peacemaking in conflict resolution is work that the world desperately needs today, to restore the notion of being “reasonable men” and to achieve our highest good. Maybe that is why peacemakers are given the nametag that matters most: the children of God.

 

 

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Satisfying our clients’ emotional due process needs

Emotional due process. What is that, exactly?

This notion – emotional due process – jumped out at me when I recently came across it in a report about the September 2018 Global Collaborative Law Council’s (GCLC) annual conference. GCLC President Melanie Atha, a lawyer from Birmingham, Alabama, noted that Collaborative Law can satisfy the need clients in a dispute have for emotional due process.

Melanie credited another Birmingham lawyer, Frank Ozment, currently in-house counsel for Regions Bank, with coming up with the phrase. When Melanie returned to Birmingham inspired after taking the Collaborative Law training in 2011, she wanted to share this approach to resolving disputes with other lawyers, including Mr. Ozment. He listened and then noted that what Collaborative Law offered clients that courts didn’t provide was the opportunity to satisfy their need for “emotional due process”.

Before getting to “emotional” due process, let’s start with due process of law. As defined in Black’s Law Dictionary, the essence of it is this:

 The essential elements of due process of law are notice and opportunity to be heard and to defend in an orderly proceeding adopted to the nature of the case, and the guarantee of due process requires that every person have the protection of his or her day in court and the benefits of general law… Further, due process rights are those of such fundamental importance as to require compliance with the standards of fairness and justice.    

 Certain elements of that definition are not usually satisfied by the typical litigated case. One of these is “an opportunity to be heard”. Since over 97% of the cases that get filed with courts settle and do not go to trial, most litigants won’t get the opportunity to be heard in court.

Further, that opportunity to be heard must be provided “in an orderly proceeding adapted to the nature of the case.” Litigation, governed by rules of civil procedure, is predictably the same in every kind of case: Complaint and answers are drafted by lawyers, filed and served, and then discovery follows for about a year or two. Over the next several months, lawyers file any motions that are warranted and they are ruled on by the court. Then (3% of the time and 2-3 years later), there may be a trial before a jury or a judge. The litigation process provides little to no opportunity to adapt the proceeding to the nature of the dispute.

During the recent celebration of Conflict Resolution Day (October 18) in Massachusetts, we honored the memory of Harvard Law Professor Frank Sander. Part of his legacy, the “Multi-Door Courthouse”, satisfied that part of the definition but sadly no longer exists. The notion of adapting the process to the nature of the case and needs of the parties involved, or “fitting the forum to the fuss”, as Sander coined it, is an essential part of due process. Before the parties choose a dispute resolution process, we must assure that they make an informed choice as to what the best approach is for their situation. Due process is best served – and maybe only can be served – when the process is adapted to the nature of the dispute.

If we fail to satisfy this informed consent requirement and are unable to “fit the forum to the fuss”, we have not satisfied the due process rights of those involved, let alone provide the parties’ emotional due process. That shortcoming is huge; it minimizes the chances that the parties will realize the best possible resolution of their dispute by going through the courts, unless by luck, litigation happens to be the right fit. Most of the time, it is not.

Frank Ozment and Melanie Atha recognized that beyond the need to adequately address a person’s legal rights, one’s emotional due process must also be satisfied. What is included within these emotional due process needs?

  • The need for parties to be heard and listened to, acknowledged and understood by all those involved – lawyers as well as other parties – and to be able to engage in the conflict as long as needed, within a structure that provides the right environment for that to happen.
  •  The need to be able to creatively shape the solutions so that the resulting resolution meets all or most of the interests, goals and needs of all parties. These may include apology, acknowledgement, curing a culture or situation, to be understood, validation, respect. This goes beyond a Band-Aid response to the symptoms; it delves into solving the problem that caused the dispute: fixing what is broken, restoring the good.      
  • The need to be able to work at the pace and within the timeframes and constraints of the parties, not what the court mandates.            
  • The need to preserve key relationships between parties, avoid doing more harm, and when possible, improving them.
  •  The need for the parties to avoid the collateral damage of draining resources, funds, energies and emotions.
  •  The need for the parties to shape and determine their own solutions for their dispute.

Litigation and arbitration cannot meet these emotional due process needs. Even mediation or conciliation, if they are utilized too late in the litigation process, cannot meet these needs.

Collaborative Law does meet these emotional due process needs. Early mediation (either instead of litigation or very early in the litigation process) can also meet these needs. Hybrid dispute resolution processes designed for the specific circumstances of the dispute can meet these emotional needs, as well as truly meet one’s due process needs. In meeting these needs, they can also lead to a better, tailor-made, more satisfying and more complete resolution of disputes.

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Why wouldn’t you work together to solve your legal problem?

Collaborate. Collaboration. Collaborative.

In the business world, in medicine, high technology, healthcare, engineering, education, aeronautics, manufacturing, public service, first responders, military defense, invention – in just about every field of endeavor, we see this word popping up over and over again.

Pick up a copy of Fast Company magazine and browse it and you will see that word in some form used dozens of times. Recently I read an article entitled “When Collaboration has ruled the roost” in the Christian Science Monitor about how several levels and types of government agencies and non-profits worked well – in collaboration – on an issue focused on a bird – the male greater sage grouse, to successfully address issues relating to our ecosystem and energy.

The idea of people working together, integrating their talents and resources, to accomplish something new and special or to solve problems is central to our lives. The Irish have a wonderful Gaelic word for this concept – the “Meitheal”. We collaborate every day – in our homes, schools, work, recreation, faith communities and charitable work; even in sports competition. Open source is the watchword in the IT community. Everywhere, people work together, help each other, build on what someone else is doing and move forward.

Yet when people have legal disputes, they don’t typically collaborate; they are not even willing to consider the notion of working with the other side. They choose to fight instead. Or they resign themselves to a sad conclusion that there is nothing that can be done about the problem so they walk away. Even though nine times out of ten, their dispute is a fixable situation and a problem that can be solved, they choose not to go the route of problem solving and collaboration. They move backwards. They escalate the fight instead of working the problem. Their emotions get in the way of approaching a dispute rationally with logic and efficiency. There is this resistance to collaborating, even though we do just that in every other aspect of our lives!

Here’s the sad irony of this emotional choice to fight, to sue, to take it to court, to beat the other side, to win. In those disputes in which people choose to fight instead of collaborating with each other and the professional problem solvers that can help them, 97% of them settle. They almost never go to trial. No one gets their “day in court”. And those who nominally “won” those fights have done so after years of fighting, after spending thousands on legal fees, after draining their resources, energies and emotions, and after destroying what was once a healthy and important relationship. Abraham Lincoln noted that when parties choose the court route, “the nominal winner is the real loser”.

They settle. They both end up with less and worse than what they could have ended up with if they had collaborated with each other at the outset of the dispute. They didn’t achieve their best possible resolution. There is a big difference between collaborating – utilizing all the professional resources, intelligence and expertise available – working together to resolve a dispute and beating each other up until either one side “wins” or both sides just get exhausted and tired of fighting.  In the first approach, everyone is doing their best work to achieve a great outcome, something that satisfies as many interests and needs as is possible, and often a result that is better than what existed before the dispute. In the latter approach, there is a lot of collateral damage, an ending that no one is really proud of, and no one is happy.

Here’s another sad irony. Using the path of collaboration in resolving disputes has a better chance of satisfying the emotional needs that parties in a dispute than going to court does. In fact, identifying and satisfying the interests and needs of the parties – including their emotional needs – is built right into the Collaborative Law process. The intentional focus on meeting the needs of the parties is both the compass that guides the collaborative process and the measuring stick for its ability to achieve a great result.

Collaboration, as opposed to fighting or walking away, is also the reflection of our highest good. Working together with people that we have differences with in order to come up with a great solution is a testament to our individual and collective character and integrity.

 

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Collaborative Advocacy: A Bridge Linking Conflict Engagement and Conflict Resolution

The following article entitled “Collaborative Advocacy: A bridge linking conflict engagement with conflict resolution” by Michael Zeytoonian was published in the July, 2018 Issue of the American Bar Association’s “Just Resolutions” publication.

There is a recurring question that arises in the dispute resolution (DR or ADR) community’s regular practice of taking stock, seeing how we can best provide our services and how to educate the public on these options available for resolving disputes:

If it makes so much sense to utilize DR approaches like early mediation, collaborative law, or ombuds services, why aren’t more people choosing these processes rather than engaging in the adversarial, expensive, prolonged, painful and often damaging alternative of litigation? 

In his thought-provoking book, Beyond Neutrality, Bernard Mayer, a leading DR professional, asks the same question: If these dispute resolution approaches are so good and work so well, why aren’t more people choosing them?

One reason for not choosing these faster, less expensive and less damaging DR processes is that people are not aware of how well some of these processes fit many dispute situations. DR professionals encourage people in disputes to first do an assessment of their dispute situation before they choose a lawyer and a course of action, to help ensure that people use the right DR process for their situation. This is really solid advice as a first step before hiring anyone. Unfortunately, most people skip this step and opt for litigation before they have thought about their options and whether litigation is right for their case. This failure to assess their situation is a major factor in why people choose to litigate, or why DR or ADR processes are not being chosen as much as they should be used.

collaborative conflict resolutionMayer focuses on another reason for the disconnect and poses a challenging question: Should DR professionals be focused on conflict resolution only or embrace the broader scope of conflict engagement? At the point that someone is hiring a lawyer or considering neutrals, he or she may still want to or need to stay engaged in the dispute, and is not thinking about resolving it – at least not yet.  Some people aren’t yet emotionally ready for resolution or even negotiating yet, and that will impact their choice of who they hire or what course they take. Their focus at this early stage is likely on winning, achieving justice or fairness, getting their “day in court”, having their say, being heard by the other side, and so on, but not yet on resolving the dispute. Litigation offers them the opportunity to continue the fight. It responds to their emotional need to stay engaged in the conflict. The other processes of DR, Mayer suggests, may be jumping too quickly to the goal of resolution and negotiating toward a solution, when those involved in the conflict are not yet ready for that and are not yet even thinking about that. They are still in “crisis mode”  mode” as Israeli lawyer Michal Kaempfer pointed out in her recent presentation during the Massachusetts Bar Association Dispute Resolution Section’s annual DR Symposium in May in Boston. They have not moved into “problem solving mode”. It may be destructive, damaging to relationships, expensive and time consuming, but litigation gives the parties that are not yet ready to negotiate a vehicle that responds to their emotional need to continue to engage in the conflict.

Unlike traditional style (post discovery/pre-trial) late mediation, Collaborative Law (CL) can also provide a vehicle for productively engaging in the dispute as long as it is necessary. The CL process provides a vehicle for continuing the conflict, but requires that the engagement be done through collaboration, working through the conflict together as is needed, rather than fighting to see who wins at trial or outlasts the other in brinkmanship. The CL process doesn’t necessarily move the parties right into considering options for resolution. In fact, by design, it doesn’t and shouldn’t get to the consideration of options for resolution until it has fully explored all the interests and needs of the parties. These needs may very well include the need to continue to engage in the conflict.

It may sound inconsistent at first glance, but it is very possible to collaborate with the party with whom one is engaged in conflict. If we consider conflict as a natural part of relationships, then working through the conflict within the structure of a collaboration is a part of that relationship’s continuum. The parties may need to continue to disagree, challenge each other and advocate for their interests, but can do so in a way that is consistent with the rules of engagement of CL – honoring the principles of civility, trust and respect for every person involved, and committing to stay in the sandbox and not leave or threaten to leave. There is an established term for this wonderful principle – respectfully disagreeing – and it is a form of communicating – and collaborating – that we would do well to revive and restore everywhere – in the halls of government, schools, the workplace, families, religious communities, community and civic organizations and the legal profession.

CL can provide a vehicle for continuing to engage in the dispute as long as it is necessary and in ways that are productive and don’t restrict our efforts. CL gives us a vehicle to use and a structure that protects the parties, so that we don’t necessarily or unconsciously bypass the continuing conflict and go right to resolution. Mayer recognizes that DR professionals have a bias toward problem solving and resolving matters that may pull us to skip over any further conflict engagement that may be necessary “Getting to [a better] Yes”. Mayer encourages neutrals and DR practitioners not to limit ourselves to only the pursuit of resolution, going as far as to suggest that we change our role from that of conflict resolution professionals to conflict engagement professionals. “Conflict engagement is not committed to any one function (like resolution), but implies helping people accomplish whichever of these tasks they are struggling with,” says Mayer.  “If we embrace the whole trajectory and the multiplicity of ways in which we can assist people throughout the course of conflict, we can begin to think of ourselves as conflict specialists, and think of our task as helping people to engage in conflict powerfully and wisely. Engaging in conflict is our consistent and overriding purpose.”

Both litigation and Collaborative Law offer parties in a conflict a vehicle for engaging in the conflict until they reach the point where they are ready to consider options for resolving the matter. One key difference is that in CL, the parties decide how they will get to resolution and what that resolution will be, while in litigation, that decision is made by someone else.              Another key distinction is that in litigation, because resolution is a by-product and not the intended goal (winning at trial) and because it is adversarial, by the time the parties get to resolution, many of those options for resolution have become casualties of the litigation and are no longer available. CL not only keeps those options still intact, but works to expand these options for resolution, which is its intended goal (reaching the best resolution).

Years ago when I shared with a fellow litigator colleague and friend of mine that I was considering shifting my approach in my employment and business law practice from litigation to Collaborative Law and Mediation, his response was that they will never catch on because “those approaches are so un-American.” He may have been right, practically or monetarily speaking.

But I think about the principles that Collaborative Law is built on: trust, civility, respectful advocacy, minimal civil procedural restraint, open and transparent exchange of all relevant information, giving parties their voice and providing a forum for all to be heard, productive use of independent neutral experts, a working collaboration of all involved, self-determination in both process and ultimate decision-making for resolution, creative problem solving. And I ask:  What could be more American? Beyond that, isn’t CL an honorable reflection of human evolution when it comes to how we engage in and resolve conflict?

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10 things to think about BEFORE you decide whether to litigate and which lawyer to hire

You have been wronged or wrongly accused of something and you are upset about it. You are angry with the party that did this to you. All kinds of emotions rush into your head, direct from your heart, without checking with your mind first:

I want my vengeance. I want to get back at ____ for what ___ has done to me.

This is so wrong. It is just wrong and it needs to be fixed. They need to pay for this. I want my day in court. I want and need to be heard. I want my rights restored or upheld. I want them to feel some pain. He/she/they can’t get away with this. I have been treated unfairly. I have not done anything wrong.  

 These are common feelings people have when they believe they have been violated or wronged. You were sexually harassed, discriminated against, bullied, mistreated, acted upon unfairly and for no lawful reason, someone breached a contract or an agreement, or did not deliver on a promise, a commitment, a deal, someone else got what is rightfully yours, accused you of something without basis for it, and so on.

You have emotional needs that must be met, including possibly staying in the conflict mode with the other side for a while. Behind those emotional needs, there are more pragmatic needs. You’ll get to those later, once you are ready for them.  But not yet.

When we are driven by these feeling, we act impulsively. We make decisions with our emotions, not our rational mind. It’s hard to put the brakes on when the option being dangled in front of your angry eyes satisfies your immediate emotional needs. These are the responses you want to hear right now:

“We’ll get that SOB and make him/her/them feel the pain.”

 “You should sue their ___. Then you’ll feel vindicated.”

  “We will get you justice.”

 “You need to find some pit bull lawyer to fight for you and destroy the other side.”

 “We will initiate some scorched earth litigation and not stop until we have cleaned out the other side’s bank accounts.”

 “We won’t rest until we have gotten you every dollar you deserve.”

These responses feed your emotions. They make you feel good. For a while. After a year or two of going down the litigation road, that short term good feeling wears off. The checks to the law firm pile up into thousands of dollars. The important business or personal relationship you once had and enjoyed has been damaged or destroyed. Every piece of email, text message and writing in all your electronic devices – your cellphone, tablet, laptop, desktop and hard drives have been scoured and put under a microscope, for all to see. You are just drained and are asking yourself, “Why am I doing this?”

You think about opportunity costs: “What I could have done with the two years of effort and energy and the thousands of dollars instead of this litigation? And then comes the other thought that counterbalances the opportunity cost notion: “I’ve invested all this time and money and energy and resources into this case. I can’t stop now; I have to see this through to the end.”

You now have two possible outcomes ahead of you: win-lose or lose-lose. At this point, the potential for win-win is gone.

The chance for a win-win was there once, back at the beginning of the dispute. Let’s go back there and before we start letting our emotion make our decisions for us, think about these 10 things:

  1. Is the relationship with the person or entity I am in this dispute with important to me, personally, business-wise or both?
  2. 97% of the cases that get filed in court settle and never get to trial. So what dispute resolution process can help me get my emotional needs met? What will give me the chance to be heard, to feel vindicated and validated, to be able to say what I need to say and have the other side listen?
  3. What approach will let me continue the engage in the conflict as long as is needed, but in a productive, efficient and protected way?
  4. Do I want to have control over both the process we use and the decision making as to the final outcome or would I rather turn that duty over to some other third party I don’t know and who doesn’t know me – like a judge, a jury or an arbitrator?
  5. How quickly do I need to get this matter resolved so that all involved can get on with our lives and our work?
  6. How much money can I afford to spend/do I want to spend on this process and if I didn’t spend it all on this process, what else could I be using that money for?
  7. If I need a creative solution to meet some of my interests and needs, what process has the ability and agility to come up with this kind of creative outcome?
  8. Is maintaining confidentiality and privacy important to me (and all those involved)?
  9. Is it possible for me and the other side to work through this dispute together, with the help of professionals trained in resolving disputes – collaborating and/or negotiating in a structured process?
  10. Have I educated myself and considered all the process options available to me before I choose which way to go and what kind of lawyers, mediators, and experts, to hire to reach the best outcome possible?

It is vital for anyone in a dispute to do a dispute assessment and think about these 10 things before they start down any course of action and before they hire any lawyers or mediators to help them resolve the dispute. No lawyer can ever guarantee any outcome. But doing a process assessment first will certainly give you the best chance for a good resolution and a win-win result.

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How a priest helped shape a lawyer and mediator. Remembering the pastor of my youth.

When people think about what goes into the training of a lawyer and a mediator, the contribution of one’s pastor is probably not on the list of ingredients. There’s law school, there’s training and direction from veteran lawyers, reading laws, cases, court decisions and continuing legal education, all shaping the legal mind.

But the people our lives cross paths with shape the kind of lawyer we are, help crystalize the “why” we do what we do and the way we do it. The people we interact with shape the kind of person that is inside the lawyer’s suit. I probably would not have become a lawyer if not for the influence of my parish priest during my teen and college years, and certainly would not have been the kind of lawyer and conflict resolution advocate I am today. As I remember the pastor of my youth this week that he passed away, the memories of how profoundly he influenced me – along with thousands of others he touched – are worth sharing here, and connecting it to the way I see my chosen profession’s highest calling – serving others in need of counsel and advocacy.

Fr. Dajad Davidian, who passed away this week, was my priest in Watertown, MA at the St. James Armenian Church at a critical time in my life, from age 15 through graduate school. Later, in my adulthood, he was my friend and mentor. After he “retired” as pastor at St. James in 1999 after 30 years of service, he served people’s needs as a priest by going to Armenia every year for months at a time, leading youth groups, counseling young people, leading Bible study and prayer groups in Armenia, and just doing what he did best – being there, in the moment, for people – up until the last week of his life. I am proud and feel blessed to be able to call him “my pastor”.

Fr. Dajad, born in Worcester (1934) was one of the first American-born priests to serve in the Armenian Church. Among his gifts were the ability to relate to everyone, from the smallest child to those in their last years, and everyone in between. He was a rare man who could balance being a brilliant mind – well-read and conversant on any subject – with his person who could humbly sit down with any person or group and just be there as one of us, and also counsel us when we sought out his good counsel. Most people – clergy, parishioners and people that knew him – agreed that Fr. Dajad was the gold standard for what a pastor in an ethnic, traditional Christian Church in America should be like. In fifty years, I have not heard a better preacher in the entire Orthodox Church, and I have not seen a better pastor in my lifetime.

One great quality he modeled for us was always being centered and grounded, totally comfortable with who he was, never needing to put on any airs about who he wasn’t, and able to relate to and respect all types of people. To his last days, he lived life on his own terms, always serving others. Those of us that were lucky enough to pick this quality up from him know its value in any chosen profession – for me as a mediator or lawyer. He was someone who was perfectly at ease being one of the guys hanging out talking about the Red Sox, Celtics or Patriots, what the editorial page writers and columnists had to say in the morning’s Boston Globe, quoting a high level economist or theologian, and offering his opinion that Congressman Barney Frank was right about some political issue. The beauty of this was that he could do it in the same conversation, shifting gears seamlessly, and keep everyone engaged! Who does that?

Picture this scene: I can easily imagine my pastor causally sitting down at a coffee house, pub or a picnic table, joining an ongoing conversation with (then House Speaker) Tip O’Neill, (columnist) Mike Barnacle, (psychologist) Amos Tversky, (songwriters) Dave Matthews and Alanis Morissette, (writers) Bill Reilly and William Saroyan and (sportswriters) Frank Deford and Karen Guregian, along with a couple of guys that happen to be sitting at the bar, all at the same time!  The human glue and junction of the group would have been Fr. Dajad, who could easily connect with each of them.  That would have been a conversation for the ages!

My pastor was a man who could listen with empathy and give you his support and love, and also subtly challenge your thinking, get you to improve yourself and move you out of your comfort zone – especially when it came to discussing any number of issues. During Lent each year, he would gather the teenagers in the church chancel one evening a week, sit on the floor and have these “Lenten Dialogues” in which we discussed all kinds of life issues, and in which he offered us teachings from Scripture that were right on point, insights from a variety of other sources and challenged us to do better and drill deeper (before drill deeper was a concept). If you mentioned a story that moved you from Profiles in Courage about Sen. Edmund G, Ross, he would nudge you up a notch to read The Clash of Civilizations and the Remaking of World Order, by Samuel Huntington.

If you commented on something you related to in his Sunday sermon, he would connect it to Scripture (or sports) and throw in something he recently read by theologian Paul Tillich. He could easily connect the dots from the simple yet profound teachings of Jesus to St. Augustine to a writing of an obscure Armenian Church father to “why is all that relevant or important to 17 year old me today, here?” Then, he would segue that to a political article he read that week in The Wall Street Journal or The New Republic magazine, and in the next sentence, tell me that I should have driven to the hoop more and taken less jump shots in the past weekend’s church league basketball game. “You know your drive is a stronger skill than your streaky outside shooting,” he would comment. (He was right.)

My pastor didn’t just meet people or know who they were; he listened to us deeply and got to know our lives well. He listened to what you were saying but also heard what you weren’t saying. He gave every person, no matter what one’s station in life, the same level of attention and care. And because of that, because he knew us all well and loved us all fully, he could give us a true friend’s comfort as well as a wise man’s advice. It might have been tough advice to hear sometimes, but we always knew that as much as it came from his mind and life experience and was worth thinking about and applying, it also came from a place of love, and always from his heart. His was the model for how to listen to a client, or parties in mediation!

His teachings, advice on life, modeling a life of serving others and his just being there for people were as much a factor for me to go to Boston College (also because a priest like him, Fr. Robert Drinan, dean of the law school and later a Congressman at the time, was there), as to later go to seminary, to serve the community, later in life to pursue being a lawyer (at the age of 33), and then think about how to better serve others as a lawyer (at the age of 55). The thousands of people he touched, the families we raised, the friendships we engaged in fully, the involvements in our respective faith communities, and the professions through which we have worked to serve others have all benefited from a once in a lifetime gift and blessing: The presence in our lives of this one man, our pastor and friend, Fr. Dajad – back then, now and always.

Photo credit: Winslow Martin

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