Early Dispute Resolution and specifically Collaborative Law were as the focus of the first part of a three-part series held at the Massachusetts Bar Association office in Boston on November 14, 2016. The series is entitled “Mediation & Arbitration Essentials” and is being co-sponsored jointly by the MBA’s Young Lawyers Division and Dispute Resolution Section. Samuel Segal, Chairman of the Young Lawyers’ Section, served as moderator.
The Hon. Patricia Bernstein, Michael Zeytoonian and Conna Weiner, all members of the MBA’s newly formed Dispute Resolution Section Council, were the panelists for this opening program. Judge Bernstein, a retired judge who is now a mediator in the private sector, drew from here experience in the court. She offered some compelling statistics about verdicts in the courts, noting the decline in verdicts in general as well as those that are favorable to plaintiffs. She observed that a large percentage of lawyers representing parties in litigation would serve their clients well by pursuing negotiated settlements earlier in the litigation process.
Conna Weiner, an arbitrator and mediator with extensive in-house counsel background, spoke about the perspective of in-house counsel pertaining to early resolution. She noted that in-house counsel often welcome pursuing early resolution, pointing out the value to the client company or corporation. She noted that early negotiation and settlement often resulted in reduced legal fees and costs, less time, resources and energies being devoted to the litigation process and often a better outcome through negotiation than would have come from the court process. Ms. Weiner also discussed a recent presentation to the 2016 International Franchise Association Symposium about the value of early resolution. The paper, “Faster, Cheaper, Better: The New Standard for Dispute Resolution”, discussed using internal dispute resolution programs to resolve disputes in a much shorter time frame.
The trend toward early dispute resolution was discussed by Michael Zeytoonian, whose firm is dedicated to non-adversarial, early dispute resolution. He talked about emerging processes within the umbrella of Planned Early Negotiation (“PEN”) designed to intentionally focus on resolution from the outset, rather than as the by-product of litigation. One of these processes that Zeytoonian highlighted was Collaborative Law, an alternative to the entire litigation process.
Outlining how the Collaborative Law works and what its principles are, Zeytoonian noted that the paradigm shift of Collaborative Law calls for a different mindset in the lawyers and the clients and a different strategy than that of litigation. “When the goal of winning at trial is replaced by the goal of working to reach the best resolution possible through a process designed to do so, it changes everything – the roles of the lawyers, the parties, the experts – even the very purpose of information exchange,” Zeytoonian pointed out.
He also urged lawyers to start their work with clients by doing process assessments with them at the very outset. “We give parties in disputes an incredibly valuable service when we first take the time to make sure the dispute resolution process they choose is best suited for their situation, educate them on the various process options available, their pros and cons and guide them to the right approach for their specific circumstances,” Zeytoonian urged.
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