“Come gather ‘round people wherever you roam
And admit that the waters around you have grown
And accept it that soon you’ll be drenched to the bone
If your time to you is worth saving
Then you better start swimmin’ or you’ll sink like a stone
For the times, they are a-changin’.
“Nor do men pour new wine into old wineskins. If they do, the skins will burst, the wine will run out and the wineskins will be ruined.”
Happy New Year, readers! It is my hope that 2017 will be an incredible year for you in all your endeavors!
It should also another year for the trending of dispute resolution away from more traditional and adversarial methods of resolving disputes. More clients are asking for something different than the old approach of civil procedure and litigation. In response, dispute resolution will continue to become more time and cost efficient, less draining and damaging, and result in the best resolutions possible.
A lot happened in 2016 in the world of dispute resolution that indicates a major shift in how people are opting to resolve their disputes. Let’s look at some of the 2016 signs indicating that the “paradigm shift” is well underway. These are just a snapshot of a larger picture.
In March, 2016, a three-day training was held in The Netherlands focusing on using Collaborative Law (“CL”) in disputes other than divorce cases. This training came just a few months after a similar training on using CL was presented to lawyers and other professionals in Bilbao, Spain.
In May, the 47th annual legal symposium of the International Franchise Association in Washington DC featured a presentation entitled Cheaper, Faster, Better; The New Standard for Dispute Resolution. The presentation suggested that franchises include in their business models an internal program for resolving disputes in a cheaper, faster and better way than the traditional reliance on litigation.
In June in Boston, the Massachusetts Bar Association (MBA) unanimously passed a resolution to replace the ADR Standing Committee with the new Dispute Resolution Section Council, now open to all members of the MBA. The MBA announced that it was “dropping the ‘A’” in (alternative) dispute resolution to reflect the growing trend of lawyers and clients alike moving away from the trial and the litigation process. Within the first two months of opening this new DR Section, over 250 MBA members joined.
In Dallas in September, the Global Collaborative Law Council (GCLC) held its annual Conference and Introductory training for non-family use of CL. Next year, the GCLC Conference and training will be in Tampa, Florida.
In October in Las Vegas, the International Academy of Collaborative Professionals (IACP) held its 17th Annual Forum along with three days of intensive training before the Forum began. The leading organization for Collaborative Law, the IACP has over 5,000 members from 24 countries around the world. The 2017 Forum will be in Philadelphia.
Between the Global Conference and the IACP Forum, a two-day training for non-divorce CL was held in Turin, Italy, sponsored by the Italian Collaborative Practice Association attended by over 75 lawyers and professionals. Two of the lead trainers were members of the Massachusetts Collaborative Law Council (MCLC), which had just completed its annual two-day Introductory Training in September on Cape Cod.
In December, the North Carolina Bar Association (NCBA) Dispute Resolution Section together the its Labor & Employment section offered a two-day training for using CL in employment cases. This was the second in a series of trainings being done by the NCBA, the first having been in April, 2016 and focusing on using CL in construction cases. The third training will be held in the spring, 2017, on using CL in business disputes.
With this uptick in interest and training of more lawyers, financial professionals, mental health professionals and business coaches in CL, new books about these new non-adversarial, interest-based processes continued to be published and new process names appeared on the horizon, joining the existing DR processes of mediation and CL. A few years ago, Missouri Law School professor John Lande had suggested the phrase “Planned Early Negotiation” (PEN) in his 2011 book published by the ABA, Lawyering with Planned Early Negotiation.
This past November (2016), San Francisco civil rights lawyer Lainey Feingold spoke at the Harvard Program on Negotiation about her work with disabled clients, largely blind, in achieving wider access and accommodation. Ms. Feingold uses a DR process she called “Structured Negotiation”. In her new book, Structured Negotiation; A Winning Alternative to Lawsuits (2016), Ms. Feingold set forth a structured process like CL, for use in the kinds of cases she has worked on, and stated that it has far more widespread appeal as another non-adversarial, non-positional approach to solving legal problems.
Meanwhile, back in Boston, Ann Jordan, present chairperson of the ABA’S Dispute Resolution Section and co-author of the above-referenced Cheaper, Faster, Better, gave a presentation co-sponsored by the Women’s Bar Association and the ABA on “The Future of ADR” and urged practitioners in her audience to make the shift toward “Early Dispute Resolution” (“EDR”) instead of litigation or very early during the litigation process.
Cheaper, Faster, Better; PEN; EDR; CL; SN are just some of the new processes all stressing non-adversarial, interest-based approaches and problem solving. The early insights of Vancouver Law Professor Julie Macfarlane in her 2008 book, The New Lawyer; How Settlement is Transforming the Practice of Law about the new lawyer that MacFarlane called the “conflict resolution advocate” have come to pass. More people today look for ways to resolve disputes that are non-adversarial. Processes that stress problem solving and working toward resolution by intention and design rather than by escalating the fight are replacing old school litigation. And more lawyers are trading in their “swords and shields” for a seat at the negotiating round table. It brings to mind the classic line of Jon Lovitz in the movie A League of Their Own:
“The way it works is, the train leaves, not the station.”