The Massachusetts Bar Association Dispute Resolution Section featured the following “Member Spotlight” on lawyer and mediator Michael Zeytoonian in November, 2017. Click here to read the article.
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I think a lot about my chosen areas of the law – both my areas of practices – employment and business law and the disputes that arise in the workplace – as well as the ways in which we resolve these disputes.
In workplace disputes, I represent both employers and employees, largely to be able to see the issues from the perspectives of both sides and have a more objective, balanced view of disputes. I also want to be free to be an advocate for either employees or employers. My role in these kinds of disputes is not that of a hired gun for one side or the other and to see the other side as the bad guy, but rather to either to provide proactive counsel and/or defend an employer that has acted properly or represent an employee who has been wronged.
The opposition in these disputes is not “the other side”, because I don’t see a workplace in terms of having two sides – employees vs. employers. Dividing and polarizing a workplace is never good. The real opposition is whatever it is that is causing a problem in the workplace, whatever or whoever it is adversely impacting the workplace environment. Ironically, the other side is that element that causes employees and employers to see the workplace as having two sides instead of a workplace where everyone works together toward shared and common goals. The goal for me is solving the problem(s) in a workplace that negatively impacts my client. The best result is a solution that creates a better environment than the situation that led to the dispute.
This approach begs the question: Are we fighting the wrong battles? Are we drawing the wrong lines of demarcation? Are we trying to resolve a dispute by using an adversarial contest when that doesn’t make sense? Disputes arise in all facets of life. They are natural. But does a dispute – which can also be an opportunity – have to set up the fight approach to resolve it?
Let’s think about this for a minute (or more). We as lawyers are called upon to help parties resolve a dispute and restore order in the workplace. But the approach we usually use to reach that result – often at the insistence of our clients – is to escalate the dispute by drawing lines between the employer and the employee and using an adversarial process, i.e. setting up a fight, to try to restore harmony and correct a problem. I’m missing the logic of that approach.
Let’s go a step further. Let’s use an analogy and see how this looks.
Imagine you are a father and your two sons are having a dispute and they come to you to help them resolve it. To make it more specific, your two sons are in the family business, they have a good relationship with each other and with the rest of the family, both as to business/workplace matters as well as in their personal and family lives. This dispute arises out of the business. So you give them titles that imply that they are on opposite sides of a fight – something like “attacker” and “defender” – and you also put the word “versus” between their names and titles. And then you tell each of them to retain a good hired gun lawyer and fight it out for the next couple of years.
You also give them a framework designed to culminate in some ultimate event, in which some third party – someone or some group who doesn’t know them or care about them – will determine which of them is the winner is and which of them is the loser. You also give them some rules of engagement for a procedure that requires them to do certain things a certain way and file a lot of information and documents related to the business and the dispute in a public records place. Later, that third party will review all this and lots of other information to help that third party decide who wins and who loses.
OK. Thanks dad.
Now, let’s reimagine that same fact scenario. You don’t give them titles this time and you don’t use the word “versus” anywhere. You encourage each of them to hire a lawyer who is trained in advising people legally and trained in different ways to help people resolve their disputes. You also recognize that your sons may need some expert advice from some expert in an area that is pertinent to what their dispute is about, so you encourage them to hire someone for that purpose and share the cost equally, and you do give that person a title – a neutral, independent expert.
You also give them some rules of engagement, but these rules of engagement are different from the ones above that are focused on forms, an order of steps that must take place, time deadlines to get those steps done and how and where to file lots of papers and information in a public repository where some third parties will review them. Instead, the rules of engagement you give them consist of basic principles and elements relating to the way they will go about resolving their dispute. You also give them a basic structure and some tools for doing this, with enough flexibility built into it so that your sons and their lawyers can adapt the structure to the situation the dispute presents.
Your sons are both pretty intelligent guys and like to have control over things like process and outcomes. They also wisely and for the good of the business and the family want to keep this dispute confidential. You also tell them that they will design the culminating event, the creative result of their collaboration with their lawyers and expert(s). They ask you how long this process is going to take because they really don’t want to tie up the next few years of their lives in a process that drains their energies, resources and emotions. You tell them that how long it takes is totally up to them and their lawyers working together, and will most probably be determined by what their goals are and what it is they are trying to achieve as a final outcome. But you tell them that they are looking at months, not years.
Your sons like this approach. And since you started this company with the goal and hope that they would someday take it over and build it further, so do you.
Your sons thank you. So do their wives and families and so does your wife. Happy Thanksgiving.
Photo Credit: Mark Levisay
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Last week (October 16-20), lawyers and dispute resolution professionals around the country celebrated Conflict Resolution Week. In Massachusetts, the Massachusetts Bar Association, through its Dispute Resolution Section, presented five different events, one each day, each in a different part of the state and each with a different focus. Over 400 people attended these state-wide events, including judges, lawyers, mediators, arbitrators, college, high school, middle school and law school students, parents, teachers, coaches, special masters and interested members of the public. Governor Baker issued a proclamation recognizing October 19 as Dispute Resolution Day in the Commonwealth.
The types of dispute resolution (DR) processes that were focused upon included court-connected mediation, private mediation, collaborative law, youth (middle school and high school) peer mediation, direct conflict negotiations between nations and ethnic groups, designed claims programs like the Victim Compensation (9-11) Fund or the Boston One (Marathon Bombing) Fund and restorative justice.
There were some common threads and take-aways in these presentations and programs about ways to resolve disputes of all sizes and types:
In the early 1980s, mediation was just being introduced as a new way of resolving disputes, in a way that kept the decision-making about the final solutions in the hands of the people in the dispute. Mediation is a voluntary, non-adversarial process in which a trained neutral mediator assists parties an in reaching a settlement agreement. It was hardly embraced back then and most people rejected it as something that would never work. Today, 40 years later, mediation is the most frequently used type of DR, far surpassing trials and arbitration.
In 1990, one lawyer in Minnesota walked away from litigation because of what he saw as how negatively it impacted clients, families and lawyers alike. He introduced a process called collaborative law and suggested it to a small group of judges and lawyers. Collaborative Law is a process in which layers and clients agree not to litigate. Instead, they replace the adversarial approach with a structured negotiation process in which parties and lawyers collaborate together by design to reach a good resolution of the dispute. Today, 25 years later, the use of collaborative law is growing steadily and is practiced in 24 nations around the world. Its international membership organization, the International Academy of Collaborative Professionals, has over 5000 members.
97% of the cases that are filed in courts today end up settling; less than 3% of these cases ever go to trial. The trial courts in Massachusetts welcome the use of DR at all levels. There are court-connected mediation programs in most state district courts. The federal courts in Massachusetts require the good faith consideration of dispute resolution alternatives at the outset of the litigation process, as an alternative to continuing litigation and/or going to trial for those cases for which DR would be appropriate, and provide mediators for that purpose.
In a society that is increasingly becoming more polarized, partisan and divided, Dispute Resolution is needed more than ever before. DR works efficiently and creatively to solve legal problems and maintain or restore healthy business, organizations and civic and family relationships. The trend toward more DR is refreshing and transformative, connecting and bringing people together rather than dividing and driving people apart. It is working to empower people, starting with our teenagers, to work together to resolve our own disputes, and restore normalcy and peace of mind where there was conflict.
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An annual national tradition in the legal community is the celebration of “Conflict Resolution Week” (CRW) and “Conflict Resolution Day” (CRD) on the third week and the third Thursday of October respectively. This tradition reportedly started here in New England by the New England Association for Conflict Resolution (NE-ACR). It is a week and a day to shine a spotlight on one of the most important bodies of work that lawyers and mediators do – help people effectively resolve disputes. This year, CRW will be from October 16 through October 20, with October 19 as CRD, and the Massachusetts Bar Association (MBA), through its Dispute Resolution Section, will be celebrating these events in a big way, from Springfield to Andover to Marshfield to Cambridge to Boston!
Dispute Resolution (DR), historically referred to as “alternative dispute resolution” or ADR, was once an alternative to going to a trial to get a case resolved. But recent trends show that people are increasingly choosing to resolve their disputes using these other ways of resolving their disputes more so than going to trial, and often in place of the entire litigation process. In the early 1980’s mediation was rarely used, arbitration was just beginning to be used more regularly by businesses and Collaborative Law (CL) had not even been created yet. (CL was created through the efforts of one attorney in Minnesota in 1990). Today, mediation is the most frequently used means of resolving disputes, even more so than trials or arbitration. As a result, many practitioners and organizations, including the Massachusetts Bar Association’s (MBA) Dispute Resolution Section Council, have “dropped the A” in ADR and now refer to these other options as either DR or DRA (dispute resolution alternatives), reflecting the fact that people are intentionally turning to mediation, CL or arbitration to resolve their disputes. Trials today are rare – 97% of cases filed in courts settle and do not go to trial – and have become the default, to be used only when another DR process doesn’t result in a full resolution of the matter.
To celebrate the emergence of DR, and to help spread the word throughout the Commonwealth about what DR is, how it works and when and how it is being used to successfully resolve disputes, the MBA, through its DR Section Council’s efforts, is offering five different events, one on each day of CRW and each one in a different region of our state. All five the programs are free and open to the public. The MBA encourages anyone interested in DR as well as lawyers, practitioners of DR, judges, law school students and the general public to attend one or more of these programs.
Conflict Resolution Day on October 19 will feature a gala Reception at the John Adams Courthouse’s Second Floor Conference Room in Boston, starting at 5:30 pm, with a program opened by our two Chief Justices Ralph D. Gants and Paula M. Carey and featuring as its keynote Kenneth Weinberg, a man who has done important work in several conflict situations including 9/11, the Boston Marathon Bombing and other hotspots and events around the world.
The Peacemaker, a documentary film on the outstanding work around the world’s trouble spots of one man, Padraig O’Malley, will be the featured focal point of the Friday, October 20 event. The screening of this film will begin at 7 pm at Harvard Law School’s Ames Auditorium. After the film, both Mr. O’Malley and the film’s producer/director James Demo will be part of panel about the film and Mr. O’Malley’s ongoing work. This event is co-sponsored by the Harvard Program on Negotiation.
Other events around the state will recognize the work of those hundreds of volunteers working all through the state in court-connected community mediation programs (October 16 in the afternoon at the Hall of Justice in Springfield), peer mediation and other programs designed to address and resolve youth and community disputes (October 17 in the late afternoon at Massachusetts School of Law in Andover) and the use of mediation and CL to resolve disputes arising out of families in transition – divorce, inheritance and family business succession matters (October 18 in the early afternoon at the Ventress Memorial Library in Marshfield).
We encourage you to attend one or more of these events, learn more about DR and encourage others who may be interested in knowing about the many options available to them for resolving their legal issues to join in the celebration. For more information or to RSVP, please visit the MBA’s website at www.massbar.org.
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We want to share some exciting news. Our firm, Dispute Resolution Counsel, LLC, has moved to a new location at 9 Main Street, Southborough, MA. We are joining other forward-thinking law firms in a new project in which these like-minded, client-driven firms will be under one roof and part of a new place called The Collaborative Outpost. These firms at The Collaborative Outpost share a common bond: We all offer dispute resolution processes that are intentionally designed to reach the best resolution of disputes possible. We offer options for resolving disputes including Early 3-D Mediation, Collaborative Law, Ombuds Services, Neutral Case Evaluation and other processes and hybrids designed to be responsive to the unique situations our clients present.
What is our “Why”? To be responsive to your needs and give you value
Our goal is to continue to work with our clients to meet your needs in ways that are responsive to your specific situation and designed to help achieve your goals efficiently and creatively. We believe that your interests and needs should drive what we do and how we work to assist you; that is how we can give you the most value. Our processes are designed to respond to your unique legal needs, rather than expect you to conform to outdated methods that are not designed around your specific circumstances. Our approach is “situational” rather than the outdated “business as usual; this is how we have always done it” way in which many traditional firms still operate. That makes us uniquely different, agile to adapt to your situation and design around your needs to give you value.
No More Billable Hours
As part of this desire to continue to be responsive to our clients and provide you with value, we have steadily moved away from the old billable hour means of charging for legal work to pricing methods that our clients prefer and that better reflect the value of our work to our clients. Our flat rate billing and project-based packages give you more value and also help you budget these costs.
Our approach: Problem-solving, Efficient, Agile, Creative
Our move to forming The Collaborative Outpost brings together several firms that all approach our clients’ legal challenges and disputes with a problem solving mindset, working with you to achieve the best results possible. We have moved away from using litigating and court intervention to resolve disputes to a collaboration of your interests and goals and our creative skills, ideas and experience. We are replacing cumbersome, reactive, adversarial processes with proactive approaches intentionally designed to solve our clients’ problems. In this way, we better serve your needs by being cost and time efficient, and avoiding the draining of your energies, emotions and resources.
We invite you to utilize some of our forward thinking approaches like our Dispute Resolution Process Assessment, our 3-D Mediation, our Primary Care Lawyer packages and our laser focus, from our first meeting, on helping you reach the kind of resolution that accomplishes your goals.
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What do Bill Belichick’s coaching approach, grapevines and dispute resolution have in common? They were all tied together in a creative and engaging way by employment lawyer and mediator Michael Zeytoonian, in his September 13 presentation to the Armenian Business Network (ABN). Zeytoonian was the guest speaker for the organization’s program and meeting at Abbey Lane restaurant in Boston, and focused his talk on “Situational Dispute Resolution”.
In connecting Belichick’s situational football approach of responding to the different set of factors that each game presents to the New England Patriots to dispute resolution (DR), Zeytoonian stressed the need to make sure that the process used to resolve the dispute is the right fit for each unique set of situational factors. He pointed out key differences between seven different types of DR processes, using an interactive exercise to educate the audience about the wide spectrum of choices available to people and the pitfalls of choosing the wrong process. “The Patriots will prepare differently for the Denver Broncos than they would prepare for the New York Jets,” Zeytoonian continued the analogy. “In the same way, litigation might be right for one dispute but wrong for another that is better served using a process like mediation or Collaborative Law. It always depends on the factors of the dispute,” Zeytoonian stressed.
“Another important take away point that I can’t stress enough is the need for parties in a dispute and their lawyers to stay focused on satisfying the interests and goals of the parties and letting those interest drive the negotiation process,” Zeytoonian urged. He used a creative story about finding out the interests that disputing neighbors had in a grapevine they shared that straddled their property line. “A key to reaching the best possible resolution is to move the focus from each party’s position – “This grapevine is mine and I must have possession” – to finding out the need or interest behind that position,” he explained. “It’s a simplified example, but once the lawyers or the mediator can find out why that grapevine is important to the parties and can meet both sides interests, it results in a better solution than one side winning or just arbitrarily splitting the grapevine in half.”
Noting that so many disputes are caused by unclear, insufficient or lack of communications, Zeytoonian stressed the importance of clarity in our messages and how we communicate. “Especially in this day and age of internet, email and texting, when so much of the communications – all of the non-verbal – is missing and all we are left with is words on paper, it is so important to communicate clearly,” he urged. Illustrating this point with one of his own communications mishaps and referencing the book “The Four Agreements”, Zeytoonian pointed to one of the agreements as being vital for preventing disputes in the workplace as well as in all communications: “Be impeccable with your word.” A lively question and answer period followed the presentation.
The Armenian Business Network (ABN) holds meetings and networking events regularly in the Boston-Cambridge area. The purpose of the ABN is to inspire and encourage Armenians to support each other through shared learning and networking to achieve excellence in their professional, commercial, and community efforts. It strives to connect the diverse Armenian professional community through quality online and offline networking. For more information on the ABN and its upcoming events, please visit www.armenianbusinessnetwork.com.
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What do you want?
It’s a pretty simple question, really. It reminds me of what Noah (Ryan Gosling) repeatedly asked Allie (Rachel McAdams), his love interest in The Notebook. She kept hemming and hawing as to how difficult her situation was, having to choose between two good men, and that there was no easy answer. But he stayed laser focused on the central question:
What do you want?
It’s one of the first questions a lawyer should be asking a client in an initial meeting or as part of a more thorough process assessment. What is the potential client’s goal? Oddly, most lawyers in their initial meeting or consultation never ask this key question.
For people involved in a dispute, the sooner you answer this question with clarity, the better off you will be in the long run. That clear answer is crucial to setting the course for the best way to approach your dispute. It will also decide if you will reach your goal at all, and if you do, whether it will be as a direct and intended result of the dispute resolution process you choose, or as a lucky by-product of a process designed and intended to reach some other goal. If the lawyer you are consulting with doesn’t ask you this question and get a really clear answer from you, run – don’t walk – and find another lawyer that asks you what you want.
If your goal is to win your dispute, this automatically also means that to achieve your goal, the other side must lose. It is a zero-sum game. Winning requires declaring war and taking sides. It sets the lawyers in motion in a competition to see who can beat the other one every procedural and substantive step of the way, over the next two to five years. Winning is a goal best served by a no compromise, take no prisoners, win at all costs approach. Think Keanu Reeves in The Devil’s Advocate: “I win; I win!!”
People who want to win usually also want the other side to lose. Even if they don’t want the other side to lose, that is the result when one side wins. This goal opens the door of the adversarial process. This is not the land of “everybody gets a trophy.” The law’s adversarial civil procedure is not designed to achieve a win-win result. It is designed for two or more parties involved in a dispute to fight to determine who is right and who is wrong, who is liable for what happened, who must pay the other and how much. This is the litigation landscape. It is what we expect of litigators. In the memorable words of Terrence Mann (James Earl Jones) in Field of Dreams when he was asked if he was going to write about what he saw on the baseball field and beyond it: “It’s what I do.”
Surgeons perform surgery. Writers write. Litigators litigate. They want to try cases. They want to win. It’s what they do. If you have some other expectation – if you want them to utilize circle process for the parties to talk respectfully with each other, or guide their clients through a structured collaborative negotiation – it is an unreasonable and misplaced expectation. When I was a litigator, I wanted to try cases. Settling or negotiating were neither my marching orders, nor my goal, nor my interest. Litigators are not called to be problem solvers; they are fighters. Their goal is to win. If you hire one, that should be your goal too.
If your goal is fixing the problem, then the adversarial path directed toward winning is not likely to take you where you want to go and certainly not as quickly as you want to get there. This is especially true if solving the problem calls for maintaining healthy relationships between the parties in the dispute, or restoring the situation to what it was before the dispute arose, or better yet, transforming the situation to something better. Most of the time, the adversarial approach to winning destroys any chance of restoration or using the dispute as an opportunity to improve things. It’s difficult if not impossible to preserve or repair relationships between the parties if the means they choose to resolve their dispute is to escalate it to a pitched battle.
There are people within the legal profession that are problem solvers. They guide their clients through a well-designed, structured negotiation process. They are called counselors at law, mediators, collaborative lawyers and settlement counsel. Their job is not to fight and their goal is not to win at the expense of the other side or at any cost. They are called to be problem solvers, facilitators and legal guides, walking alongside their clients and helping them reach their goals. They help clients fix legal problems, not make them worse, and sometimes transform the situation into something better than it was before the dispute.
If you want to fix what needs to be repaired and your hope is to restore things to the good circumstances there existed before the dispute, or to improve them further, and you can view the dispute as an opportunity to do so, you need to tell your lawyer that is what you want.. You need to make sure the lawyers that you and the other party in the dispute hire to work with you are the right types of lawyers for achieving the results you want. It might feel like you want a fighter, emotionally. But what you need is to find lawyers who are trained and experienced as problem solvers. It’s what they do.
What do you want? It’s a simple question. Responding to it correctly is the key to a successful outcome. Skipping it leads you down a path you should never travel on, to a place you don’t want to go.
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The 13th Annual Civil Collaborative Law Conference of the Global Collaborative Law Council (GCLC) will take place in Tampa, Florida on September 7-9, 2017. The three day conference will be hosted by the Hillsborough County Bar Association and held at their offices in Tampa. GCLC is the largest organization dedicated to the use, training and promotion of Civil Collaborative Law (CCL) and has members from the US, Canada and several other countries. CCL includes all practice areas other than family law.
Michael Zeytoonian, lawyer, mediator and principal of Dispute Resolution Counsel, LLC (Wellesley and Southborough) will be one of four presenters from Massachusetts. Other Massachusetts lawyers featured at this conference include Jeffrey Fink (Wellesley), David Hoffman (Boston) and Paul Faxon (Waltham). Zeytoonian and Faxon, who have teamed up in presentations in several U.S. cities and most recently in The Netherlands (2016), will be teaming up for a presentation entitled “Successful Resolution of Small Business Disputes”, focusing on a case study in which Collaborative Law was used in a closely-held business dispute. Their presentation will take place on Friday afternoon, September 8.
David Hoffman will be presenting along with attorney Larry Maxwell of Dallas, Texas on September 8 on the use of Mediators in Collaborative Law cases. Jeffrey Fink’s presentation on September 9 is called “Beyond Informed Consent: Real-World Ethics for Civil Collaborative Lawyers”. This year’s GCLC Civil Collaborative Law Conference features 17 trainers and presenters including several leading experts and practitioners in CCL from all around the US.
The GCLC Conference features one full day (Sept. 7) of basic training in Collaborative Law applied to business, employment, probate and other non-divorce disputes, followed by a two day conference that offers a variety of advanced training topics.
Click for More Details:
http://www.collaborativepracticeflorida.com/event/global-collaborative-
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“I want my day in court.”
This is one of the most frequent desires and sentiments expressed by a new client in our initial conversation about their legal dispute. Here are some other common emotional responses when someone finds themselves in a dispute:
“I want justice to be done.”
“The other side has to pay for what he/she/it did to me; it was just wrong.”
“I want the other side to feel the pain in some way for what they did.”
“I need someone who is a scorched earth litigator to get some degree of vengeance.”
“A wrong has been done and it needs to be made right.”
If someone wronged you in some way, or brought a claim against you that is totally frivolous or without any merit, your emotions are your first responders. As a lawyer, someone whose purpose as a legal counselor is to walk alongside my clients and guide them, give them sound advice and direction, I am often talking them away from that emotion-driven cliff. In its place, we work together to develop a solid strategy, one that is designed from the outset to achieve their goals and meet their needs.
In dispute resolution, we often talk about satisfying our clients’ needs and helping them shift their focus from their “positions” to their “interests”. (Interests are often the substance behind the emotion-based statements of position; the “why”.) For lawyers to best serve our clients, we need to ask the extra question and find out the reasons behind their positions. Then, we can help them recalibrate and work toward getting the best resolution possible.
Let’s go back to that desire for their “day in court” because it’s important to think that through. We know that clients who start by filing a lawsuit with the courts and litigating rarely if ever get their day in court. Statistically, less than 3% of the cases filed with the courts ever go to trial. They settle. It is almost guaranteed that the client will never get his/her day in court by filing a complaint with the court.
If you know from the start that 97% of the cases filed with courts settle, the logical conclusion is not to initiate a draining, cumbersome process designed to prepare for a trial that will almost never happen. It makes overwhelming sense to work from the beginning to resolve it by intention, using processes designed to settle cases. Wouldn’t it be more logical to work with lawyers trained in resolving disputes and focus on the goal of reaching the best possible resolution, rather than pursuing a goal of winning a trial that will most likely never happen?
Of course it does. But most of us make decisions with our hearts and emotions, not our minds and or rational side. It is up to us lawyers and mediators not to fan those emotions, but to productively address and satisfy that desire for one’s day in court, knowing that a trial won’t be happening. We have to be their advocate and get them their day, but another way.
What does “getting one’s day in court” really mean? How would we satisfy our client’s needs, knowing that our client will likely never see that trial in court? I’ve often asked my clients what that day in court would look and feel like, and asked them to tell me how that day in court would satisfy their interests.
When we delve into the question of why our clients want their day in court, and why it is so important (the interests behind the position), here’s what we hear:
“I want to be heard. I want to be able to tell my side of the story and have the other side, as well as the lawyers and others involved in this process, quietly listen and hear what I have to say. I want to be able to speak about this matter and have the other side listen without interrupting me or shouting me down. I want them to have to think about it and how to fix what isn’t right. I want to be respected and given my fair due.”
Getting one’s day in court is all about being heard. It is about being respected, being significant and having worth in the eyes of partners, employers, spouses, co-managers, and colleagues. It’s about being appreciated and treated with dignity. It is rarely about the money. Money damages and “winning” are positional concepts. While they may satisfy one’s ego and give people a short-term emotional high, they don’t provide a complete solution or satisfy the needs of a person to be respected and treated with the level of dignity and acknowledgement a person of value desires.
It sounds counterintuitive, but if you want to get your “day in court”, the road to getting it is not usually through the courthouse.
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Urging business and transactional lawyers to take some dispute resolution (DR) training and add some DR expertise to their toolbox of legal skills, Michael Zeytoonian and Jeffrey Fink presented a talk on DR to the Business Lawyers Network (BLN) at its monthly meeting on June 14. The meeting was hosted by Howard Zaharoff and Scott Connolly of Morse Barnes-Brown Pendleton at the firm’s Waltham office. Fink and Zeytoonian are both experienced DR practitioners, both representing parties in DR processes and both are also neutrals.
Jeffrey Fink focused on the importance and value of dispute resolution clauses in contracts as a proactive way to discuss with clients how a dispute will be resolved long before any disputes arise. He pointed out the perils of not addressing which DR process to use in business contracts, offering anecdotals on mistakes when clients use boilerplate contracts.
Fink also stressed the vital need for lawyers to fulfill their ethical obligation to educate clients on the various DR options available to them so that clients will be able to make informed decisions on which process would be best to use in their specific situation.
Michael Zeytoonian echoed the need to make sure the clients choose the right process for their needs and their situational facts. He urged lawyers to conduct a process assessment with potential clients before they begin any course of action, focusing on client factors such as these:
Zeytoonian also discussed the basic elements of Collaborative Law and how it worked to resolve business or employment disputes. He stressed the flexibility and adaptability of Collaborative Law so that it can be tailored to the needs of the parties in terms of scheduling, pace and design. He stressed the value of collaborating on developing the best solutions rather than adversarially preparing for a trial that rarely (less than 3% of the time) happens.
He also discussed the early mediation model as compared to traditional mediation that is done late in the litigation process and essentially as an alternative to a trial. He noted that early mediation can be designed to incorporate the exchange of necessary and relevant information into the mediation process, and can use three shorter sessions that are well planned rather than one full day session. He noted the inherent pressure built into the full day mediation model to agree to a less than optimal settlement before the day ends, rather than leave without one.
The Business Lawyers Network is a group of Massachusetts business and small boutique firm lawyers that meets monthly for an educational program as well as to provide members with an opportunity to develop business relationships and refer business to each other.
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