Patrick Massa Law

Tom Brady: “We have all lost”

Posted on October 2, 2015 by Michael Zeytoonian

Patriots’ quarterback Tom Brady’s sentiments about the ordeal of “Deflategate”, a story and a litigation that needlessly lingered around for seven months, reflects Abraham Lincoln’s sentiments over 150 years ago. Brady’s statement, reported recently in TIME magazine, came after he won his appeal of the NFL’s decision to suspend him for four games for his alleged “general knowledge” about the team deflating footballs below the league’s range of inflation during a playoff game.

Brady’s accurate observation should not be lost on anyone, especially people contemplating initiating litigation or prolonging or escalating a dispute. Too often, litigation leads to a result that is frustrating at best and a lose-lose for all involved. Brady “won” the appeal, but not before months of stress, damage to his reputation and thousands of dollars spent on lawyers. The relationship between one of the league’s quality franchises, together with one of its marque players and the league’s commissioner and many team owners has been shattered; any trust most likely permanently broken. Thousands, maybe millions were needlessly spent on legal fees, and everyone’s reputation was tarnished. Too much time, energy, emotion and money was spent on something that within the smaller context of football and a league, should have been resolved with a $25,000 fine on the team, and in the larger context of things, doesn’t matter much at all.

As a successful trial lawyer, Lincoln advised young lawyers to “discourage litigation”, pointing out that “the nominal winner is the real loser’ in terms of money and time lost. How much better served everyone would have been with a respectfully and efficient negotiation process that really addressed the interests and needs of the parties involved in deflategate?

Most people who have been involved in litigation will echo Brady’s sentiments. One way or another, no one won here. Like the Battle of Little Big Horn, in which the Lakota (Sioux) tribe and Crazy Horse won the day and Custer and all his men died on the battlefield, too many lives were lost or hurt on both sides, relationships were shattered forever and trust was destroyed. In Montana after that battle and still today, nearly 140 years later, a silent battlefield marked with many tombstones is all that is left. Nothing was built on this land being fought over then, no one lives on it or uses it, and neither of the combatants own the land today (it is part of the Crow Reservation).

For those readers that don’t follow football or stories as ridiculous as deflategate, it’s not worth telling. For those who follow football, you already know its sad history. After several levels of dispute, a federal judge vacated a four game suspension of Brady, finding the NFL’s commissioner’s decision to be without support and arbitrary. It has been reported that the NFL has since appealed the judge’s decision and has asked for an “expedited” appeal, proposing that oral arguments be heard by the appeals court four months from now, in January, 2016. Sometime after that, in all probably after the season has ended, the Super Bowl has been played and a year has passed, another decision will be handed down. And even that may not theoretically be the last word from the judicial process, if the parties are crazed enough to continue.

Those of you not familiar with time frames in litigation are probably thinking: Four months before a court even hears the oral arguments is considered “expedited”? Really? If you are not in the legal field and not a football or sports fan, you are probably thinking worse: All this fuss, time and money over a few footballs that allegedly had slightly less air in them than what the league requires? How misguided is that? And for what possible positive result?

Three weeks ago the 2015-2016 NFL football season started. Football fans are now focused on what they should be focused on – teams playing football. For the fans and the rest of the world, Deflategate is thankfully and hopefully in the rear view mirror, at least for now. Roger Goodell, the ill-advised NFL commissioner, is laying low, having not been seen or heard from since the judge’s ruling. No one looks worse, and no one’s reputation and quite possibly livelihood, has taken a worse hit than Goodell. Even if the league wins its appeal, which is highly unlikely, it will look hopelessly small minded in the “win”, as a league and a commissioner that doesn’t understand priorities or have lost their perspectives on what is important and what is not.

Tom Brady and his Patriots are 3 and 0 and look like a team on scorched earth mission, making their statement on the field, the latest victims being the Jacksonville Jaguars, losing 51 to 17 to this now angry juggernaut. The two teams that raised the issue of the so-called deflated footballs are the Ravens, who have yet to win a game this year, and the Colts, who, after two losses, are very fortunate to have eked out a 35-33 win over a third tier team to go with their two losses. In three weeks, they get to play the Patriots. Apparently, some are bigger losers than others.

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The Collaborative Review features article by Zeytoonian: So what is a Meitheal anyway?

Posted on September 23, 2015 by Michael Zeytoonian

So what is a Meitheal anyway?

The Fall issue of The Collaborative Review (Vol. 15, Issue 2), has just been published and features an article by Michael Zeytoonian, Director of Dispute Resolution Counsel, LLC in Wellesley and Westborough, MA about the essence of Collaborative Law. The article is entitled “What Makes Collaborative Law Collaborative Law (really)?” and it focuses on what is at the core of Collaborative Law’s process and how this approach changes how lawyers and clients resolve disputes. Here are a few excerpts:

It’s the collaboration that works the magic of this process. It’s the combined efforts, intelligence, creativity, passion, experience, spirit and energy of all the people in the Collaborative meeting as they work, talk, listen, exchange ideas and relevant information, identify interests and goals, and build on each other’s thoughts and suggestions, all in one focused, structured gathering…

The Irish call this [Collaborative] meeting a “Meitheal”, the work group, the formal process of coming together for a common purpose, a traditional method of accomplishing as communal objective, where the process is as highly valued as the resulting outcome…

Collaborative Business Law is more than just using an alternative dispute resolution process. We are asking everyone involved to think and act differently – to truly collaborative with each other. We are urging people to go back and uncover the person each of us was created and born to be. We are advocating for the kind of response to disputes that naturally emanated from the people and the kinds of communities were once were, before we became adversarial, partisan, litigious and blame-fixated.

This Fall issue of The Collaborative Review has published six other feature articles along with Zeytoonian’s on different aspects of Collaborative Law and its growth. They include articles about Collaborative Law and its growth in Italy, in New Jersey, in Connecticut, about the choices people now have in divorce situations, and about co-parenting coaching within the context of Collaborative Law cases. The Collaborative Review is the quarterly journal of the International Academy of Collaborative Professionals (IACP), now in its fifteenth year of publication. The IACP is the primary international organization of Collaborative lawyers and professionals, has over 5,000 members in over 20 countries around the world. Its mission is to transform how conflict is resolved worldwide through Collaborative Practice.

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Some food for thought over Labor Day weekend

Posted on September 4, 2015 by adminDRC

Can you respond rationally to your dispute instead of emotionally?

Fact: Over 95% of the cases filed in courts end up settling and never go to trial. If you know there is an overwhelming likelihood that your case will settle through negotiations or mediation – doesn’t it make sense to use a process designed to reach a settlement in a time and cost effective way? Rather than litigate, this other approach would save time, money and aggravation. It would also prevent the largely unnecessary draining of the resources, energies and emotions of all parties involved.

How many other human endeavors can you think of in which people are willing to commit their time, money and resources to a process in which the event they are preparing for will only happen 3% of the time?

So before you file that lawsuit or hire a litigation firm to defend against one, isn’t it worth checking out what your other options are? Isn’t it worth getting some legal advice about these, get an assessment of your situation and get educated on other approaches that will likely be far more effective at getting your goals and interest met?

What happens when people react with their emotions instead of rationally?

You get something like the NFL’s “Deflategate” debacle. A rational approach to this matter of an allegedly broken rule would have been to assess the $25,000 fine in the NFL rulebook. The assessment of a fine like this typically happens right after the infraction is discovered. It is generally not challenged if it’s not completely arbitrary or off the mark (like a fine of $1million, the loss of two draft picks and a four game suspension). The wrongdoer usually pays it within weeks of the assessment of the penalty.

But when emotions, egos and other hidden agendas take over, you get the mess that the NFL finds itself in today. The league and its commissioner are the laughing stock of any rational, normal person. The only beneficiaries are lawyers who have made millions on this and comedians who have great fodder for one liners. The league, commissioner Roger Goodell, Tom Brady, Robert Kraft, the Patriots, the other NFL teams – no one will get anything positive from this farce. The general public and sports fan are tired of tolerating this nonsense after six months. Talk about lose-lose! I think about the good that could have come from the millions of dollars and man-hours that have been casually tossed around if that money had gone to some good causes or people that truly need help.

In lawsuit terms, you’d get something like the Demoulas family supermarket (aka Market Basket) dispute that went on and on for a decade or more. It also resulted in the parties spending millions in legal fees, and spending years draining their energies, emotions and resources and destroying any chance for maintaining healthy relationships in the family or the business.

On a smaller scale, I once had a client that spent over $5,000 in legal fees over a $5.00 dispute. He was so driven by “the principle of the thing” and the ego that drove him to “not back down” that he was willing to spend that money, take up months of his time and run the risk of having a criminal conviction for disturbing the peace against him.

Anyone who has been through litigation will tell you they never want to go through it again, even if they “won”. Even hardened businessmen that began the litigation process ready to fight to the end and wear the other side down usually reach a point, about a year or two later, where they are asking themselves and their lawyers why they are doing this. Soon after, they direct their lawyers to settle this case now as they have had enough.

Can people make the shift from the emotional, ego response to a more rational, well thought out approach? Dan and Chip Heath discussed this phenomenon in their excellent book, Switch: How to Change Things When Change is Hard. They concluded that decision making is often a contest between our rational side (“the Rider”) and emotional side (“the Elephant”). Their premise is that the Elephant makes decisions, not the Rider. Maybe that’s why people choose to litigate. If we can’t persuade people to approach disputes rationally, we may have to figure out how to appeal to the Elephants within people. But until we do, I’m going to keep working on the Riders out there, hoping they can rein in their Elephants.

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Posted in deflategate, elephant, Family Law and Divorce, Financial Considerations of Dispute Resolution, labor day, Mediation, settling | Comments Off

Transforming disputes into transactions via Collaborative Law

Posted on August 27, 2015 by adminDRC

When I work with people to help them resolve their disputes, I often find that they are very preoccupied with finding fault and placing blame for what has happened to trigger the dispute. We spend a lot of our energies, time and emotion – clients and lawyers alike – looking backward at what happened and seeing who we can hold liable.

In cases where liability is an issue, this is a necessary part of the legal analysis. It is one of several factors that are relevant and will play a role in the ultimate resolution of the matter. Many cases in which there was possibly a wrongful act or a failure to do what should have been done break down into two analyses – who bears the liability and what was the measure and amount of damages sustained. While it is an important component in dispute resolution, often when clients are too wrapped up in finding fault, it becomes counterproductive.

When too much of our present collective focus is on the past, the future is at risk. Being overly preoccupied with what is in the past takes away from our ability to focus on the present situation as well as what is in the best interests of the parties going forward.

When a couple in a divorce dwells on what happened in the past to the point where it detracts from their present needs and the well-being of their children, the future is sacrificed. When a party in a business dispute uses litigation to grind down the other side as revenge for what happened in the past, the present has been disarmed and the future is being weakened.

As a lawyer, Abraham Lincoln often pointed this out to his clients and other lawyers, advising them to “discourage litigation”, because it often resulted in an outcome in which “the nominal winner is the real loser in terms of costs and lost time.”

Too often, I find myself working to refocus clients from their preoccupation with finding fault in every little thing the other side did wrong to the bigger picture of satisfying the clients’ true interests and goals. As lawyers who specialize as Settlement Counsel or Collaborative Counsel, we frequently find ourselves reminding their clients as well as our counterpart attorneys to not be so preoccupied with winning all the little skirmishes that they risk losing the war. In dwelling in the past, we emasculate the present and lose sight of our goals for the future.

During World War II, when Great Britain had sustained heavy losses at Dunkirk, many were looking to seek recriminations and point a finger here or there. Great Britain’s fiery leader, Winston Churchill’s insightful comment helped re-calibrate the focus of his people:

“If we open a quarrel between the past and the present, we shall find that we have lost the future.” – Winston Churchill

The adjustments we make in the present to respond to things that occurred in the past do help to shape the future. But those present actions and present attention needs to be driven by future considerations and motivated by the achieving of one’s goals, not rooted in past events that cannot be changed. It’s a subtle distinction, but it decidedly impacts the efficiency and the clarity in how we address disputes, and certainly impacts the quality and creativity of the outcome. How we approach a dispute and our focus on the future rather than the past helps transform the nature of the dispute resolution from a series of small skirmishes to problem solving steps, and from an adversarial war to a creative transaction.

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Brian Jerome, Michael Zeytoonian Present on ADR to Nigerian Judges

Posted on August 25, 2015 by adminDRC

Brian Jerome and Michael Zeytoonian made a presentation on alternative dispute resolution (ADR) to a group of 12 Nigerian Judges and high ranking court officials on August 5, 2015 in Cambridge, MA. The presentation was part of a program the judges are attending offered by the UMASS Center for Peace, Democracy and Development. The presentations were followed by a lively question and answer session in which the judges discussed the court system in Nigeria, where a “multi door court” ADR option is a prominent part of the court system.

Jerome, who is the founder and director of Massachusetts Dispute Resolution Services in Boston, drew from his many years as an arbitrator, mediator and private ADR provider. He spoke about the use of privately offered (as opposed to court-connected) mediation and arbitration. He also spoke about the use of Conciliation in some courts. Both Jerome and Zeytoonian discussed the varying degrees throughout the Massachusetts courts that courts and judges have accepted and promoted the use of ADR in some state court and the federal courts.

Zeytoonian, founder and director of Dispute Resolution Counsel, LLC in Wellesley and Westborough, MA, spoke about mediation, Collaborative Law and the use of ombuds services. He also discussed the differences between interest-based ADR processes (mediation, Collaborative Law) and positional and adversarial processes (arbitration and litigation). He noted that the federal court’s system of scheduling case management conferences at the beginning of the case and discussing the mediation option early in the process was more effective that the state Superior Courts, in which the option of mediation is not typically even raised by the court until the pre-trial conference that takes place after discovery and motion practice have been completed.

Nigerian judges discuss ADR in their court system

The Nigerian judges shared some of the practices of the courts in their country, which consists of both local courts and a federal court. They noted that the time period from the time a case is filed with the courts until their pre-trial conferences is much shorter – a few months – than in Massachusetts, where it can be anywhere from 18 months to three years before a pre-trial conference takes place. They also noted that in their courts, two judges are assigned to every case, one with the duty of managing the case and the other with the responsibility of doing the trial.

Further, in the Nigerian court system, a determination is made by the courts early in the case (after filing of the complaint and the answer) whether the case is a good candidate to get assigned to the multi door court to pursue mediation or continue with the litigation process Their Chief Justice also noted that their pre-trial conferences may extend out over a month’s time and usually include several follow up meetings in which the parties, lawyers and judges actively discuss settling the case.

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Ten things to think about before you decide to file a lawsuit (or start to defend against one).

Posted on August 18, 2015 by Michael Zeytoonian

Ten things to think about before you decide to file a lawsuit (or start to defend against one)

So you find yourself as an individual or your small, successful family or closely held business faced with a potential lawsuit about a dispute in the workplace between employee or employer, or between business partners or between adult family members trying to decide the future of the family business, or the family’s holdings.

What do you do? You’ll probably reach out to someone you trust – either a family member or a close friend or good business colleague. Or to a trusted advisor – a lawyer, an accountant, a financial advisor or a business coach. Someone who knows you and knows your business, employment or family situation well.

That’s a good first step. Someone who knows you well and knows the circumstances that are the context for your dispute.

But what do you do after that? One of these folks will probably advise you to talk to a certain lawyer, hopefully one that has training and expertise in the area of law that your dispute falls within, and get some good legal counsel.

Now here’s the key point, coming up right here at the beginning, that most people – lawyers and clients – miss or gloss over. What is the right process for you to use for your specific situation to achieve the best result possible? If you don’t ask this question to a lawyer, to yourself and/or a trusted adviser, you will likely find yourself two or three years, thousands of dollars and a lot of spent energies later in a place you never wanted to be, having gone through a dispute resolution (“DR”) process that wasn’t a good fit for your situation.

So before you make decisions on a legal course of action, here are ten things to think about:

Is this DR process capable of achieving an outcome that meets your interests and goals?
What is the time frame within which you and your counterpart in the dispute need to get this matter resolved?
Do you want to maintain control over the process and the ultimate outcome or hand those decisions over to someone else (judge or arbitrator) or something else (a jury)?
Is preserving the health of the relationship with the person or entity you are in a dispute with important?
What is your financial bandwidth to cover the costs of legal fees and other related costs?
Is confidentiality and privacy important, both as to the process and the result?
What is your level of risk aversion and that of the other side?
Is it important to you to minimize the draining of your energies, resources and emotions on this process?
Can you and the other person or entity in the dispute, communicate with each other, work together and collaborate toward achieving a good resolution?
Is it important for you to control the scheduling of the DR process around your workday and other family commitments?

Going through these considerations first is critical to achieving a good outcome. If the lawyer you consult does not discuss these things with you before you initiate a DR process, it would be good to consult with another lawyer who does. If your lawyer tells you that you need to do this process assessment and informed consent first step and there is a fee for this, do it. It is probably the best money you will spend on the entire DR process, as it will get you on the course of action that is right for you and your case.

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Zeytoonian to present on ADR to Nigerian delegation

Posted on July 31, 2015 by adminDRC

A delegation from Nigeria is traveling to the United States and working with the UMASS Center for Peace, Democracy and Development to learn more about ADR. The delegation is made up of several high level judges from Nigeria and includes the Chief Justice and the President of the Court of Appeals.

The use of Alternative Dispute Resolution (ADR) has spread worldwide and is growing quickly in European and African nations, the United Kingdom, Canada and Australia. ADR first began to gain popularity in the United States in the 1980s and is widely used today as an alternative to courts and to litigation.

Michael Zeytoonian, director of Dispute Resolution Counsel, LLC (DRC) in Wellesley Hills, MA, will be making a presentation on ADR to this group on August 5 Cambridge, Massachusetts. Michael will join long-time ADR colleague Brian Jerome of Massachusetts Dispute Resolution Services (MDRS) in Boston in making the presentation. Jerome and Zeytoonian bring their years of experience in many forms of ADR including Mediation, Arbitration, Collaborative Law and Conciliation. They have both trained other lawyers in ADR processes, lectured at several area law schools and have served for several years on the Massachusetts Bar Association’s ADR Committee.

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Legal Informed Consent includes knowing your legal process options

Posted on July 23, 2015 by adminDRC

“An educated consumer is our best customer.”

That was the memorable tagline for Syms, a successful men’s clothing retail store in the New York area years ago. It struck a chord for many reasons. A business that wants its customers to be educated on its products or services reflects honesty, transparency and a shared desire for quality and value. It respects and compliments the customers. It implies that the business wants its customers to be intelligent, do their homework, research and due diligence before coming into the store or office and doing business together.

Doctors and medical professionals use the phrase informed consent when they talk about the requirements they need from a patient before doing any kind of medical procedure. They want the patient to know exactly what is involved, what the advantages and disadvantages are, what the risks are and what the likelihood of a successful result will be. It’s not only about choosing the right doctor, but also the right course of treatment. Only then is a patient making an informed decision on the medical course of action to take.

It should be the same in the legal profession. The responsibility of the lawyer to obtain informed consent before a client decides which way to go in handling a dispute should be a requirement that is regularly practiced and complied with in a meaningful way. In some situations it is required, but not always. And sometimes this step of advising of a potential client on what his or her legal process options is often glossed over and not done thoroughly.

A potential client’s inquiry should be twofold: (1) First, the client should find out about the expertise of the lawyer or firm in the practice area(s) of law that are involved in the dispute. You wouldn’t hire a lawyer that does real estate closings and bankruptcy work to handle a workplace discrimination claim any more than you would go to an audiologist when you break your leg.

(2) Secondly, the client needs to be educated on what process options are available to him/her, what are their differences, pros and cons, which one would be the best process for the circumstances in this dispute and why. It’s this second piece, this informed consent inquiry that most clients and many lawyers don’t fulfill. You wouldn’t go to Syms if you were looking for garden tools, or even if you wanted your suits and shirts cleaned and pressed.

This informed consent requirement is not usually carried out, in part because the client doesn’t know to ask about process options. Even when he or she does inquire about process options, the response from most lawyers and firms would be to suggest one option. It’s only natural that mediators would suggest the mediation option and litigation firms would suggest the litigation option. That may not be so bad, as long as the client has also first been educated on what options exist, how they work and why they might or might not be a good fit in the situation. However, this informed consent step should never be skipped or rushed through.

When a client has chosen a lawyer who has the right expertise in the relevant practice area and is also educated about the various process option and has compared them, then and only then is the client making an informed choice as to process and lawyer. At this point, the client has real value and has increased his or her chances of reaching a really good resolution and outcome.

It is important to us at Dispute Resolution Counsel, LLC, that our clients are educated about their process options so they can make the best choice of how to approach resolving their disputes. We share in Syms’ belief that educated clients are great clients for what we do and how we do it.

We hope that you will share this blog post with others you know and welcome your comments.

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Problem Solving – Where Special Forces and Dolphins Find Common Ground

Posted on July 16, 2015 by adminDRC

Dolphins are natural problem solvers.

The habits and intelligence of dolphins was the focus of a story in a recent issue of National Geographic (May 2015), and a photo in the story caught my attention. It pictured two bottlenose dolphins underwater off the Florida Keys. Each one had its snout in a rope handle at opposite ends of a PVC pipe full of fish. The caption explained that the dolphins quickly realized that the only way to get the cap off one end of the pipe and get at the fish inside the pipe was to work together pulling at each end until the cap came off.

Each dolphin could have fought the other one to get the whole pipe away from the other dolphin and have it all to itself. But then, the dolphin would not have been able to open the pipe and get to the fish inside. It would have won the fight but not gotten any closer to its goal of getting the fish. It would have felt good for the moment and stroked its ego, but not satisfied its underlying interest.

People often marvel at the intelligence of dolphins, noting that they are almost as smart as humans sometimes. Hmmm… But the dolphin was smarter here, not in terms of raw intelligence, but in recognizing that unless it collaborates with another dolphin, it’s not going to achieve what it wants. Dolphins, unlike humans, are not burdened with the driving force of an ego, so it could work with its competitor – the other dolphin – to accomplish a shared goal – getting the pipe open to get at the fish.

We are smarter than dolphins, at least as we were created. But often our ego gets the better of us. We see the idea of giving ground, “lowering our weapon”, or agreeing to work together as a sign of weakness. The dolphins innately recognize that working together to solve a problem is a better way, because they are not clouded by the need to win, or more accurately, the need to beat the other side (often losing in the long run).

But humans don’t often view things the same way. Somewhere along the tug of wars of life, beating the other side becomes more important, and unconsciously, it replaces our real goal of getting what we want and need.

I recently read an article on leadership and overcoming adversity, featuring advice from a lieutenant colonel in the Special Forces. It never once mentioned overpowering or even outmaneuvering the other side. Instead, it stressed five key things: preparation, creativity, cooperation and negotiation, teaching and motivation.

The negotiation, the lieutenant colonel stressed, is built “on humility, on cultivating a relationship and on doing what is mutually beneficial.”

So here is where dolphins and military Special Forces find common ground in problem solving:

Humility (getting your ego out of your way)

Cultivating a relationship (building trust enough to be able to work together)

Doing what is mutually beneficial (working in collaboration to accomplish shared goals)

The next time you find yourself in a dispute and are wondering how to go about resolving it, remember the innate shared intelligence of dolphins and the Special Forces.

I’d love it if you would share this post with others and share your own experiences and outcomes when you used either the ego-driven approach or Dolphin/Special Forces approach.

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Posted in Collaborative Mediation, dolphins, Mediation, special forces, teamwork | Comments Off

The Power of Lawyers’ Trusting Each Other

Posted on June 25, 2015 by adminDRC

One of my early experiences as a litigator in New York came at a court conference on a case I had in Bronx Supreme Court. For those of you who don’t practice in New York, the Supreme Court there is the trial court (I guess it’s an ego thing) and the Bronx courthouse is anything but supreme. With long daily dockets that dwarf anything I’ve seen in the busiest courts in Massachusetts, depositions taken in the court hallways, and the pace of court clerks going through the docket that would make the fastest rocket docket here look like slow motion, working as a new lawyer in Bronx Supreme Court is trial by fire.

One experience that stuck with me came when opposing counsel stated his position, legal arguments and facts of the case to the judge at this conference. He just out and out lied several times in less than five minutes. I knew he was lying, he knew he was lying, he knew that I knew he was lying and in all likelihood, the judge knew it too. But this lawyer stood there with a straight face and a voice of great conviction and spit out lies. When I called him on it after we left the courtroom, he looked right at me and said that everything he said was true. I knew I could not trust him and he didn’t care. This was a low moment for a profession I view as an honorable one that calls on every lawyer to act honorably. In 11 years of litigating in New York, I got to work with and against some of the finest lawyers of the highest integrity I know. But I also had to deal with some disgraceful excuses for lawyers who provided fodder for all the insulting lawyer jokes.

Years later I find myself practicing in a much smaller legal community, where it’s easier to keep a book of who’s honest and who’s not and, to their credit, most lawyers I’ve gone up against are honest. Working in the mediation and Collaborative Law communities has given me the chance to work with some amazingly talented and thoughtful attorneys. These are people who exude trust and integrity, and inspire me to be proud of the legal profession.

Trust and integrity. Authenticity and respect. Transparency and collaboration. These are not terms or values that are commonly associated with lawyers. But they should be, as they should be in every profession. It is not without shortcomings, but at its best, the law is an honorable and elegant profession.

These days I find myself referring to lawyers on the other side of cases as “counterpart counsel” and have often used the phrase “good working with you on this case” in talking to them about our cases. The changed references to other lawyers reflects an important paradigm shift in how we view our roles and our relationship. I see myself as legal counsel and advocate for my client, but also as a problem solver working with another lawyer to find a good resolution of the dispute. The beauty of getting away from the adversarial approach is that lawyers can truly work together on cases, pool our intelligence, our experiences and our resources and develop solutions that better meet the needs and interests of our respective clients. When we replace competition and fighting with collaborating, we can achieve a better result. When we start to see conflicts as catalysts for progress, we can use disputes as opportunities for growth.

I want to go back to that notion of lawyers trusting each other. In cases where lawyers knew they could trust each other to be honest and act with integrity, it allowed us to be more transparent, to exchange ideas with each other and to build on good ideas from our legal counterpart. When the goal shifted from winning and beating the other side to both sides winning and achieving an outcome that was better than the situation that led to the dispute, it allowed us to do better work, give our clients the benefit of straightforward counsel and give our clients better representation.

This may seem very counter-intuitive for an overly litigious and competitive American society and an adversarial nature that feeds on the zero sum game of winners and losing. This modern American culture often views its lawyers as sharks and pit bulls who will manipulate the facts and the law so that their clients will win. But here is a truth I’ve learned in 25 years of practicing law: Lawyers are usually a reflection of their clients’ wishes and are the “hired guns” of those clients. People use those derogatory references above for lawyers, but when those same people are in a dispute, many of them immediately hire those very pit bulls to be their pit bulls. The marching orders to conduct “scorched earth litigation” and to “grind the other side into the ground” come from clients, not from lawyers. People talk about their pit bull lawyer with the swagger of a soldier, urging them to win at all costs and do whatever it takes. Yet those same people speak about lawyers in general who do what it takes to win with disdain. There’s an obvious inner conflict there, but too often people don’t follow that inner, quieter voice within.

People often quote Shakespeare’s line of “First, we get rid of the lawyers” to show that lawyers are the problem. But the full context of that quote goes on to show that the reason they wanted to get rid of the lawyers was because the lawyers stood in the way of creating anarchy; the lawyers were the custodians of keeping order.

Maybe the lawyers need to take the lead and set the tone of trust and integrity. Maybe we need to model these values along with those of respect, civility, honesty and fairness for the clients to follow our example. What if lawyers start telling clients that they trust the lawyer on the other side and can work together with that lawyer to accomplish the best result possible for their clients? And they advise that the process itself would be built on trust, and the clients were going to have to trust the lawyers to work in collaboration to achieve the optimum resolution?

What would that look like?

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