The Annual ADR (alternative dispute resolution) and the Law Conference, held on September 23 at the MCLE (Massachusetts Continuing Legal Education) office in Boston, may have been called ADR for the last time. Today’s trends of dispute resolution include the steady rise of mediation, now considered the dispute resolution process of choice, the continued use of arbitration in many business cases, and the growing use of other early dispute resolution processes like Collaborative Law and early mediation. What were once seen and named “alternatives” to litigation or to trials are no longer the alternatives, but often the first choices of many parties in disputes.
Daniel Shapiro, PhD., founder and director of the Harvard International Negotiation Program and well known author, was the keynote speaker of the Conference. He centered his remarks around his new book, Negotiating the Non-Negotiable, and the role emotions play in disputes and negotiations. Shapiro is also the author of the book, Beyond Reason: Using Emotions as you Negotiate, which he co-authored with dispute resolution and negotiation guru Roger Fischer (Getting to Yes). Shapiro offered several valuable insights on what to look for in disputes that can often obstruct resolution, and ways to address them.
Brian Jerome, the chairman of the Massachusetts Bar Association’s new Dispute Resolution Section Council, moderated a panel on early dispute resolution processes. Jerome, a leading mediator and arbitrator in the state and principal of Massachusetts Dispute Resolution Services in Boston, spoke about the advantages of the early use of mediation to resolve disputes. He encouraged the inclusion of dispute resolution clauses in contracts and agreements that utilize the options of mediation as well as arbitration as preferred choices to litigation. Encouraging their use, he pointed out that less than 3% of the cases filed with court get to trial; the rest are settled.
Michael Zeytoonian of Dispute Resolution Counsel, LLC in Wellesley, focused on early options for resolving disputes. He urged lawyers to be situational in responding to disputes and tailor the dispute resolution process to the situation that the parties and the dispute present. He suggested that lawyers first offer clients a “conflict assessment and recommendation”. This is a valuable exercise that first assesses the situation of the specific dispute, the characteristics and needs of the parties, and then educates the parties on what options are available to them and how each on works. After this has been done, lawyers can recommend a process choice based on the situation. Zeytoonian then outlined the elements of the Collaborative Law process and gave a brief overview of how this structured and planned early negotiation process works and when it can be used.
The Hon. Judith Dein, a Magistrate Judge in the federal district court in Boston, Massachusetts, spoke about the use of mediation in the federal district courts. As a Magistrate Judge, Judge Dein also serves as a mediator if parties in federal case opt for mediation, a service that the federal courts provide at no cost for the mediator. Judge Dein spoke about her experiences mediating cases in the court, how the federal courts encourage parties in certain cases that are good candidates for mediation early in the litigation process during initial case management conferences.
Jeffrey Catalano, the new President of the Massachusetts Bar Association and a partner at Todd & Weld in Boston, discussed his practice areas of expertise – medical malpractice, products liability and other personal injury matters. He spoke about some of the moving experiences from situations where victims had some of their emotional needs and interests met through the use of dispute resolution processes. He also outlined a new program called CARe (Communication, Apology and Resolution), a new endeavor being promoted by the Massachusetts Alliance for Communication and Resolution following Medical Injury (MACRMI). This program focusing on more open disclosure and communication between patients and doctors, a process that encourages investigation and explanations of what occurred, and taking steps to avoid any recurrence of incidents. The program also provides opportunities for fair compensation without the need to file a lawsuit, and where appropriate, for an apology to be made. The new program utilizes mediators to facilitate the processes involved.
Rounding out the ADR program for the conference were panel discussions on the role of the “mindful mediator” as well as a panel on the emerging trends in arbitration.
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