Posted: October 25, 2016 in the Boston Bar Journal.
We live in a specialized world, one in which access to information is so overwhelming that there literally is “an app for that” to satisfy even the most specific and narrow of needs.
Yet, until recently, the legal profession’s response to the increasingly tailored needs of our clients has been to give them all the tried and true traditions of the law. Got a dispute? Let’s file a lawsuit with the courts and travel down the litigation road. Got a complex, sophisticated business dispute? Let’s go to arbitration with an arbitrator who is experienced in business disputes. Don’t want to risk a jury deciding your case and spend thousands of more dollars on a trial? Let’s go to mediation. Because…this is how we do it. This is how we’ve been doing it for decades.
The information revolution has moved too quickly and our clients have become too savvy to be content with the legal profession’s limited amount of choices or one size fits all approach. There is a time and a place for litigation, for arbitration, and for late in the dispute process mediation. But most of the time, our clients need an approach to resolving their disputes that is tailored to their needs, specific circumstances, and unique situations. Today’s lawyers and neutrals can best serve our clients by being responsive to the specificity of their needs and interests. That includes not only resolving a dispute but also how we go about resolving it.
New England Patriots coach Bill Belichick often talks about playing “situational football.” In other words, the game plan is designed differently for each game and depends on the situation each opposing team presents. The Patriots will never use the same game plan against the Broncos as they used for the Jets just because it worked. The Patriots win because they understand that a great result begins with a carefully designed and tailored approach.
Every dispute is different. Every client has a different bandwidth of factors which need to be considered. These may include how quickly the client needs to resolve the matter; how much can be spent on it; how important are the relationships of those involved; how much control does the client want to have over the process and the result; how risk averse is he/she; how important is confidentiality; what kind of expertise is needed; what are the important interests that are behind a stated position; and how productively can the parties work together in a non-adversarial setting, with or without a human go-between.
If the field of dispute resolution (DR) is going to be relevant, it has to be agile and responsive to the situation that is presented to us. No longer can litigation be the default and a couple of other processes be “alternatives.” In fact, no one process can be the default position and be presented to clients as the Cadillac of dispute resolution processes. It is time for the “A” (alternative) to be dropped from “ADR” (alternative dispute resolution), something that the Massachusetts Bar Association has just formally recognized in changing its former ADR Committee to its new DR Section. No process is an alternative; rather, every process is an alternative, and there are alternatives within the alternatives.
Within these DR processes, there is an explosion of variations and new roles emerging. For example, distinctions are often made between “facilitative” style mediation and “evaluative” mediation. In the latter, the mediator is called upon to help the parties assess how strong or weak their respective positions are, and to provide insight on the potential damages. A new trend emerging, called Planned Early Negotiation (PEN), draws a distinction between mediation which is done instead of litigation, or very early on in the litigation process, and that which is done later, often on the eve of trial. When done early, there may be some kind of information exchange so that the parties, lawyers and the mediator have enough factual information for well-informed and productive negotiations. Conciliation is another DR process with a much shorter time frame – often an hour or two –- and has often been referred to as “mediation on steroids.” Conciliation largely focuses on the advantages of reaching a negotiated agreement as compared with the pitfalls of the alternative of going to trial.
New approaches have been developing even in the well-established field of arbitration. Arbitration has increasingly become a more complicated process and often includes many elements of litigation. As a result, many parties are opting for more streamlined models of arbitration with limits on discovery and motion practice Some even use a more simplified version like “baseball arbitration,” in which the parties submit their respective written proposals for a settlement to the arbitrator, who then chooses the one he/she believes to be more appropriate and reasonable. And within baseball arbitration, there is both the version just described, known as “daytime” baseball arbitration, and “nighttime” baseball arbitration, in which the parties submitted proposals are not disclosed to the arbitrator until after the arbitrator renders a decision. The proposal that is closest to the arbitrator’s decision is then chosen to be the final resolution. In other cases, arbitrators may visit the site that is at the heart of a dispute and may limit or expand the degree of information exchange, the scope of submissions and the nature of a hearing.
Collaborative law, a structured negotiation process, grew out of the need to remove or minimize the adversarial elements of litigation. Collaborative law is a PEN process designed to intentionally pursue resolution by agreement through the collaboration of lawyers, clients and experts. It is similar to the more established role of settlement counsel. Lawyers that are hired as settlement counsel have the singular and limited purpose of negotiating with the other side on behalf of the client, as distinct from litigation counsel. A dispute would then proceed on two tracks; settlement counsel would be focused on pursuing settlement negotiations only, while litigation counsel would be handling the litigation aspects of the dispute.
Similar to the role of settlement counsel, the focused legal representation of clients by collaborative lawyers is limited to the collaborative process, where achieving the desired resolution is the lawyer’s only role. Collaborative law requires the open and voluntary exchange of all relevant information as a basic tenet. As such, “discovery” is both streamlined and profound. Collaborative lawyers and their clients may utilize neutral facilitators, case evaluators, or other neutral experts to provide parties with the expertise needed on the relevant factual and legal issues when there is a colorable claim and a valid defense. By its very nature, collaborative law is responsive to the circumstances of the dispute, allowing for flexibility and creativity in crafting solutions. That very nature allows collaborative lawyers to use variations while remaining consistent with the process’s basic protocols and principles.
Hybrids like “med-arb” or collaborative law with a baseball arbitration style closure option are also emerging, each with a different adaptation of process. What is clear is that there is no longer just one model of any of these processes. They will be called upon to be responsive to the situation each dispute presents.
These changes will require lawyers and neutrals to make more detailed assessments of each situation and the parties involved. Based on that assessment, we can then make a recommendation as to choosing and sometimes designing the right approach. This can present somewhat of a dilemma. Many lawyers and neutrals have a preferred DR process, one that we are more comfortable with, have the most experience in or in which we have been trained. Just like a surgeon excels at surgery and that is what the surgeon wants to do, litigators want to litigate; arbitrators want to arbitrate; mediators want to mediate; collaborative lawyers want to use collaborative law; and so on. So when the client comes into our office, there’s a natural bias, as well as a financial incentive, toward wanting to lead the client to what we do.
But if we are true to doing a thorough assessment of the client, his/her situation and all the factors of the dispute that is presented to us, and are going to make a good recommendation about the approach for this unique situation, we may have to refer the person to some other process and someone else that is the right fit for that client.
In the same way that a lawyer specializing in one area of practice would not try to represent the client in an area outside of his/her practice, a lawyer whose focus is settlement counsel or collaborative counsel is probably not the right lawyer for litigation, and vice versa. As there are specialties in areas of practice, today there are specialties in types of process. The training and expertise for a litigator is different than that of a settlement counselor, just as the process of collaborative law is different from arbitration. In her groundbreaking book, The New Lawyer: How Settlement is Transforming the Practice of Law, Law Professor Julie Macfarlane eloquently dissects the differences between adversarial advocacy and the newly emerging “conflict resolution advocacy.”
There is a role and a place for every kind of process on the DR spectrum, from litigation and arbitration on one end to preventive contract drafting and proactive ombudsman work on the other end. As the needs and demands of our clients get more specific and more sophisticated, those of us who represent our clients either as litigation, settlement or collaborative counsel, as well as those of us who serve as DR neutrals, must be responsive. The times call on us to be flexible and agile, to be ready and able to design approaches according to the needs and the situations presented to us. As legal counsel and neutrals, it is up to us to guide parties in the right direction in order to help them achieve their best outcomes.
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