North Carolina makes the Collaborative Law pivot

The state that was “First in Flight”, and more recently a key swing state in the 2016 Presidential election, hopes to also be a pivotal state in the increasing use of Collaborative Law in non-divorce or “civil” disputes. Some of its lawyers have just completed its second two-day training in civil, non-family disputes and the state bar association is already planning a third training for early 2017.

 

The North Carolina Bar Association’s (NCBA) Dispute Resolution and Labor & Employment Sections co-sponsored and hosted this second training – focused on using Collaborative Law (CL) in employment disputes – on December 8 and 9, 2016 in Charlotte at the Harris Center of Central Piedmont Community College. Over 45 participants attended the training program. A similar turnout attended a two-day training in April, 2016 focusing on using CL in construction disputes. A third training, one for applying CL to business disputes, is being planned for the Spring of 2017.

 

North Carolina already has a state CL statute and is actively working toward passage of the Uniform Collaborative Law Act. John Sarratt, a long-time commercial law litigator turned Collaborative lawyer, has joined Aida Doss Havel and Mark Springfield, two long time CL family law attorneys, in spearheading and energizing the movement toward widening use of CL in the Raleigh, Charlotte and Winston-Salem regions of the state. These three Raleigh-based leaders of the CL movement were joined on the faculty for this program by two NC employment lawyers, Danae Woodward (Charlotte) and Denise Smith Cline (Raleigh), along with construction lawyer John Ong and Christopher Osborn, a general practice attorney, both from Charlotte.

 

Michael Zeytoonian, founding member of Dispute Resolution Counsel, LLC (DRC) from Wellesley Hills, MA, an experienced CL lawyer and trainer, was the guest speaker/trainer. His practice area focus is in employment, business and special education law. DRC offers non-adversarial processes like CL, mediation and settlement counsel to help people resolve disputes without going to court. Zeytoonian delivered the opening session of the training, teamed up with his NC colleagues for 5 other sessions and was involved in several “debriefing sessions” throughout the two days.

 

“It was so energizing to see the great enthusiasm, commitment and engagement of teachers and participants alike in Charlotte,” Zeytoonian commented. “John Sarratt and his CL colleagues are already making great strides to ‘evangelize’ NC lawyers and offer people faced with a dispute this efficient, flexible, non-adversarial option to litigation,” Zeytoonian noted.

 

“CL takes some of the best elements of mediation and litigation and offers people a structured negotiation process that is responsive to peoples’ needs to get matters resolved quickly, efficiently and creatively, without unnecessarily draining their resources, energies and emotions,” Zeytoonian explained. “CL is a process intentionally designed to reach the best possible resolution of a dispute. It gives people direct value because every moment of a lawyer’s time is spent directly on achieving the client’s goals and working at reaching the best outcome possible, rather than on trying to comply with procedural formalities and preparing for a trial that rarely happens,” he concluded. “I am happy to have had the chance to work with this great team of lawyers and wonderful human beings. I am looking forward to hearing of the success stories that come out of NC in the year ahead.”

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Should Discretionary Clauses be built into Workplace Laws?

Sometimes, when you cast out a big net, you catch a lot of fish that you weren’t intending to catch. When fishing, a fisherman has the option of sifting through his catch to check what is there, keep what he wants and throw the rest back in the water. With a minor interruption of their activities, the unwanted fish can usually resume what they were doing.

Unfortunately the workplace laws and those who are designated to enforce the laws don’t typically have that discretion. In some instances, it would be more productive if some discretionary flexibility was written into some of the laws or understood to be a part of the process of how the laws are enforced.

I represent both employers and employees in workplace-related disputes, working with both sides to resolve their disputes without litigating. In 2016, I’ve worked on three cases in which the strict enforcement of the wage and hour laws actually did the employees a disservice and hurt the small business employers. The “wide net” that the laws give enforcement agencies also pulls in many businesses who are clearly not the types of employers who abuse the system or hurt employees.

Most of these employers take good care of their employees. These are companies that go the extra mile for those who work for them, whose policies and practices usually offer far more benefits and greater protections than the laws provide. They are proactive. You look at how long their people have stayed with them and you see 20 years, 30 years, etc. You see their model workplaces, appreciated employees whose companies provide what they need in a healthy workplace environment. These employers are flexible enough to accommodate the day to day life needs of their employees. No one is complaining. People are in fact more productive and often work harder for their company. There is mutual respect and loyalty.

But even these types of companies sometimes find themselves getting caught in legal technicalities. A zealous agency hauls them in, sometimes because they were targeting a certain industry. Sometimes, this law net catches those who are doing things right, while at the same time missing the real wrongdoers and abusers that don’t take care of their employees and have figured out how to work around the law, often by just laying off employees.

In these situations, when early in the investigation of the company it becomes very evident that the employer is one of the good guys, it would be helpful to have some discretion written into the enforcement. When it’s clear that a company is doing things right, is well intentioned and working to be in compliance with a myriad of laws and regulations, there needs to be an escape clause, a pass given or some discretion worked into the enforcement provisions. When the agency knows that this is not the kind of employer that the law was designed to target – a company that is not the problem, but already is part of the solution – the means to recognize the goodness of the company should be available.

A provision that allows the agency to point out the technical violation, make a suggestion or two about how to productively address it so that it doesn’t happen again, is what is needed in these cases. This would give good business owners and well-intentioned law enforcement agencies and staffs the opportunity to mutually acknowledge the technical problem, understand the good purpose of the law and affirm that this particular company is not an intended target. They can resolve the matter by shaking hands, encouraging each other to keep up the good work and close the file with no further action needed. There is no need and no purpose being served by blemishing the otherwise perfect records of companies like these and having them walk away from the legal encounter with the feeling that “no good deed goes unpunished.”

Rather, a worthwhile mutual goal here would be for law enforcement agencies to recognize their allies out in the workplace, for employers and employees to know that the agency has got their backs and is going after those businesses that that create unfair advantages for themselves by unfairly cutting corners. Building some discretion into the laws would help prevent the letter of the law from undermining or obstructing its spirit and purpose. Discretionary provisions would provide the flexibility needed for good resolutions with these kinds of employers. These solutions would also result in employers, employees and law enforcement agencies respecting each other’s goals, acknowledging each other’s shared interests, and working in collaboration and trust to meet them.

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MBA Panel focuses on Early Dispute Resolution and Collaborative Law

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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First, assess your options for resolving disputes

I’ve heard people who are in a business or employment dispute often complain, “I’m stuck in this dispute, and now we’ll have to litigate. I have no options.” If you take nothing else from this blog post, know this: They are usually wrong; there are options.

Most people in disputes don’t know they have options and if they do still don’t consider them. They may have heard of mediation and arbitration but really don’t know exactly how they work, what the differences are and when to utilize each one. They have probably not heard of Collaborative Law, Conciliation or Case Evaluation. They usually just start the litigation process, which is like opting for legal surgery without considering some alternative first or at least getting a second opinion.

Why don’t we approach legal disputes the way we approach medical issues. When it comes to our health, we get advice from doctors we know and trust, and we often get at least a second opinion. We don’t just call the surgeon and start the prep for surgery first. Yet that is what most people do when they are in a legal dispute.

When I was 13, my father taught me that everything is negotiable, especially if you are willing to walk away from the deal. His lesson was the core message of what those in the dispute resolution field today refer to as having good “BATNA” (best alternative to a negotiated agreement). When you don’t need to buy what they are selling to you, when you can and will walk away, you have great BATNA.

My dad also gave my wife one piece of advice when she married me: “Make sure you always give Michael options; he needs to have options.” This was great advice for her. I am a true Libran in the sense of weighing options before deciding. That’s part of what drives me to provide my clients with options for how they should resolve their disputes.

Legal disputes affect your health and well-being in more ways than one. So why wouldn’t you check what options are available for resolving this dispute and get good counsel on the pros and cons of each alternative to going to court before you choose a course of action?

Your best “First Step” is finding a legal counselor that will assess your situation, teach you about the dispute resolution options available to you, recommend which one is the right process for you and tell you why. Then, and only then, you can make an informed decision about what process to use. It should be a lot more like the medical process than you think. If your lawyer skips this step, you would do well to get a second (legal) opinion.

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A word about “Good Counsel”

The first thing I noticed when I walked onto the campus of my law school was a beautiful stone chapel and the sign in front of it with its name: Our Lady of Good Counsel. It turned out that the law school shared the grounds with Our Lady of Good Counsel School. The chapel greeted people as they came up the common driveway. I’m certain that the suggestion of “Good Counsel” at the outset of my legal career was no coincidence.

That phrase – “good counsel” – has always remained in my mind, throughout law school and in over 25 years of practicing law since then. The original Greek word for “counselor” means “one who is called alongside to help”. Over the years, I embraced and internalized that message as my fundamental purpose as a lawyer – to provide my clients with good counsel. It’s the most important service and value I can give my clients, whether I am proactively helping them prevent disputes from arising, guiding them to achieve the best outcome in their disputes, or helping them work through other legal challenges.

So it’s fitting that we name our e-letter “Good Counsel”. We hope that the information included helps our clients, colleagues and friends make good decisions, and leads them to good results. We hope you find its contents worthy of the name.

Michael Zeytoonian, Founding Member
Dispute Resolution Counsel, LLC

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Beyond Arbitration and Mediation: Designing the Dispute Resolution Process to Fit the Situation

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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Why do I need a primary care lawyer?

Here is how to resolve a legal dispute.  Approach it the way you make your medical decisions.  Start with consulting your “primary care lawyer”, just as you would first see your primary care physician.

Your primary care lawyer will give you good advice about what options you have for resolving your dispute.  Your primary care lawyer is probably not a litigator, just as most of us don’t have surgeons for our primary care physicians.  Surgeons are trained and passionate about operating on patients; that is what they do.  It is not their purpose to spend time considering the patient’s health history and all the factors that go into making health decisions.  That is for the doctor who is trained in internal medicine and who knows his patients, their histories, family life, job stress levels, habits and propensities.  With that knowledge, the primary care physician is in a good position to quarterback his patients’ health care and make good recommendations.

I trust my primary care physician completely.  He has taken the time to know me, my habits, what I will and won’t do and what I can handle well enough to give me good options.  He won’t be doing the procedure he suggests, but he will know why to do it and who should be doing it.  He is invaluable for advising me and suggesting the right next steps.  He may not have the gifted hands of a top surgeon, but he is the most important doctor I have.

Your primary care lawyer will take you through a conflict assessment and recommendation.  This will take a good, hard look at your unique circumstances, assess your financial and emotional bandwidth, consider the kind of person you are, and how quickly you need the dispute resolved, your level of risk aversion, how important the relationship is with the other party, and other factors.  With that knowledge, he/she then takes the time to educate you on your options before giving you a recommendation as to which dispute resolution process option is right for you.  If you skip this step and go first to a legal surgeon (a litigator), he will take you down the litigation road.  That is what he wants to do, what he believes in and what he is supposed to do.

More often than not though, “legal surgery” (litigation) is not the best procedure for your situation.  There might be a need for litigation in the future, if less risky, complicated and invasive options don’t achieve the desired results.  But at the outset of the dispute, another option would likely be a better fit, given your circumstances and those of the other party.

There is one big difference between resolving legal disputes and addressing medical issues:  When you opt for surgery and start the prep, nine times out of ten you end up having surgery, unless there a compelling reason why you shouldn’t.  But when you opt for litigation and start down the road toward trial, nine times out of ten you will NOT have your trial, unless there is some compelling reason why you should.  The chance of that trial ever happening, despite the years of time, and the financial and emotional investment in preparing for it, is less than 5%!  Some time very close to the start of the trial (imagine yourself being right outside the operating room, about to be wheeled in), you will start discussing your options to trial and 95% of the time, you and your lawyer will opt for another process.

You could have chosen that option much earlier on in your dispute, if you had first received some good advice from your primary care lawyer.  Your primary care lawyer would have saved you thousands of dollars and years of anxiety, while preserving important relationships and avoiding the drain on your emotions, energies and resources.

Like I said, my primary care physician is my most important and valuable doctor.  Your primary care lawyer should be your most important and valuable lawyer.  If you don’t have one, now is a good time to get one so that you can be proactive, well-advised and ready.

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Why do I need a primary care lawyer?

Here is how to resolve a legal dispute.  Approach it the way you make your medical decisions.  Start with consulting your “primary care lawyer”, just as you would first see your primary care physician.

Your primary care lawyer will give you good advice about what options you have for resolving your dispute.  Your primary care lawyer is probably not a litigator, just as most of us don’t have surgeons for our primary care physicians.  Surgeons are trained and passionate about operating on patients; that is what they do.  It is not their purpose to spend time considering the patient’s health history and all the factors that go into making health decisions.  That is for the doctor who is trained in internal medicine and who knows his patients, their histories, family life, job stress levels, habits and propensities.  With that knowledge, the primary care physician is in a good position to quarterback his patients’ health care and make good recommendations.

I trust my primary care physician completely.  He has taken the time to know me, my habits, what I will and won’t do and what I can handle well enough to give me good options.  He won’t be doing the procedure he suggests, but he will know why to do it and who should be doing it.  He is invaluable for advising me and suggesting the right next steps.  He may not have the gifted hands of a top surgeon, but he is the most important doctor I have.

Your primary care lawyer will take you through a conflict assessment and recommendation.  This will take a good, hard look at your unique circumstances, assess your financial and emotional bandwidth, consider the kind of person you are, and how quickly you need the dispute resolved, your level of risk aversion, how important the relationship is with the other party, and other factors.  With that knowledge, he/she then takes the time to educate you on your options before giving you a recommendation as to which dispute resolution process option is right for you.  If you skip this step and go first to a legal surgeon (a litigator), he will take you down the litigation road.  That is what he wants to do, what he believes in and what he is supposed to do.

More often than not though, “legal surgery” (litigation) is not the best procedure for your situation.  There might be a need for litigation in the future, if less risky, complicated and invasive options don’t achieve the desired results.  But at the outset of the dispute, another option would likely be a better fit, given your circumstances and those of the other party.

There is one big difference between resolving legal disputes and addressing medical issues:  When you opt for surgery and start the prep, nine times out of ten you end up having surgery, unless there a compelling reason why you shouldn’t.  But when you opt for litigation and start down the road toward trial, nine times out of ten you will NOT have your trial, unless there is some compelling reason why you should.  The chance of that trial ever happening, despite the years of time, and the financial and emotional investment in preparing for it, is less than 5%!  Some time very close to the start of the trial (imagine yourself being right outside the operating room, about to be wheeled in), you will start discussing your options to trial and 95% of the time, you and your lawyer will opt for another process.

You could have chosen that option much earlier on in your dispute, if you had first received some good advice from your primary care lawyer.  Your primary care lawyer would have saved you thousands of dollars and years of anxiety, while preserving important relationships and avoiding the drain on your emotions, energies and resources.

Like I said, my primary care physician is my most important and valuable doctor.  Your primary care lawyer should be your most important and valuable lawyer.  If you don’t have one, now is a good time to get one so that you can be proactive, well-advised and ready.

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Early Dispute Resolution – an Emerging Trend – Focus of MCLE Conference

The Annual ADR (alternative dispute resolution) and the Law Conference, held on September 23 at the MCLE (Massachusetts Continuing Legal Education) office in Boston, may have been called ADR for the last time.  Today’s trends of dispute resolution include the steady rise of mediation, now considered the dispute resolution process of choice, the continued use of arbitration in many business cases, and the growing use of other early dispute resolution processes like Collaborative Law and early mediation.  What were once seen and named “alternatives” to litigation or to trials are no longer the alternatives, but often the first choices of many parties in disputes.

Daniel Shapiro, PhD., founder and director of the Harvard International Negotiation Program and well known author, was the keynote speaker of the Conference.  He centered his remarks around his new book, Negotiating the Non-Negotiable, and the role emotions play in disputes and negotiations.  Shapiro is also the author of the book, Beyond Reason: Using Emotions as you Negotiate, which he co-authored with dispute resolution and negotiation guru Roger Fischer (Getting to Yes).  Shapiro offered several valuable insights on what to look for in disputes that can often obstruct resolution, and ways to address them.

Brian Jerome, the chairman of the Massachusetts Bar Association’s new Dispute Resolution Section Council, moderated a panel on early dispute resolution processes.  Jerome, a leading mediator and arbitrator in the state and principal of Massachusetts Dispute Resolution Services in Boston, spoke about the advantages of the early use of mediation to resolve disputes. He encouraged the inclusion of dispute resolution clauses in contracts and agreements that utilize the options of mediation as well as arbitration as preferred choices to litigation.  Encouraging their use, he pointed out that less than 3% of the cases filed with court get to trial; the rest are settled.

Michael Zeytoonian of Dispute Resolution Counsel, LLC in Wellesley, focused on early options for resolving disputes.  He urged lawyers to be situational in responding to disputes and tailor the dispute resolution process to the situation that the parties and the dispute present.  He suggested that lawyers first offer clients a “conflict assessment and recommendation”.  This is a valuable exercise that first assesses the situation of the specific dispute, the characteristics and needs of the parties, and then educates the parties on what options are available to them and how each on works.  After this has been done, lawyers can recommend a process choice based on the situation.  Zeytoonian then outlined the elements of the Collaborative Law process and gave a brief overview of how this structured and planned early negotiation process works and when it can be used.

The Hon. Judith Dein, a Magistrate Judge in the federal district court in Boston, Massachusetts, spoke about the use of mediation in the federal district courts. As a Magistrate Judge, Judge Dein also serves as a mediator if parties in federal case opt for mediation, a service that the federal courts provide at no cost for the mediator.  Judge Dein spoke about her experiences mediating cases in the court, how the federal courts encourage parties in certain cases that are good candidates for mediation early in the litigation process during initial case management conferences.

Jeffrey Catalano, the new President of the Massachusetts Bar Association and a partner at Todd & Weld in Boston, discussed his practice areas of expertise – medical malpractice, products liability and other personal injury matters.  He spoke about some of the moving experiences from situations where victims had some of their emotional needs and interests met through the use of dispute resolution processes.  He also outlined a new program called CARe (Communication, Apology and Resolution), a new endeavor being promoted by the Massachusetts Alliance for Communication and Resolution following Medical Injury (MACRMI).  This program focusing on more open disclosure and communication between patients and doctors, a process that encourages investigation and explanations of what occurred, and taking steps to avoid any recurrence of incidents.  The program also provides opportunities for fair compensation without the need to file a lawsuit, and where appropriate, for an apology to be made.  The new program utilizes mediators to facilitate the processes involved.

Rounding out the ADR program for the conference were panel discussions on the role of the “mindful mediator” as well as a panel on the emerging trends in arbitration.

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Early Dispute Resolution – an Emerging Trend – Focus of MCLE Conference

The Annual ADR (alternative dispute resolution) and the Law Conference, held on September 23 at the MCLE (Massachusetts Continuing Legal Education) office in Boston, may have been called ADR for the last time.  Today’s trends of dispute resolution include the steady rise of mediation, now considered the dispute resolution process of choice, the continued use of arbitration in many business cases, and the growing use of other early dispute resolution processes like Collaborative Law and early mediation.  What were once seen and named “alternatives” to litigation or to trials are no longer the alternatives, but often the first choices of many parties in disputes.

Daniel Shapiro, PhD., founder and director of the Harvard International Negotiation Program and well known author, was the keynote speaker of the Conference.  He centered his remarks around his new book, Negotiating the Non-Negotiable, and the role emotions play in disputes and negotiations.  Shapiro is also the author of the book, Beyond Reason: Using Emotions as you Negotiate, which he co-authored with dispute resolution and negotiation guru Roger Fischer (Getting to Yes).  Shapiro offered several valuable insights on what to look for in disputes that can often obstruct resolution, and ways to address them.

Brian Jerome, the chairman of the Massachusetts Bar Association’s new Dispute Resolution Section Council, moderated a panel on early dispute resolution processes.  Jerome, a leading mediator and arbitrator in the state and principal of Massachusetts Dispute Resolution Services in Boston, spoke about the advantages of the early use of mediation to resolve disputes. He encouraged the inclusion of dispute resolution clauses in contracts and agreements that utilize the options of mediation as well as arbitration as preferred choices to litigation.  Encouraging their use, he pointed out that less than 3% of the cases filed with court get to trial; the rest are settled.

Michael Zeytoonian of Dispute Resolution Counsel, LLC in Wellesley, focused on early options for resolving disputes.  He urged lawyers to be situational in responding to disputes and tailor the dispute resolution process to the situation that the parties and the dispute present.  He suggested that lawyers first offer clients a “conflict assessment and recommendation”.  This is a valuable exercise that first assesses the situation of the specific dispute, the characteristics and needs of the parties, and then educates the parties on what options are available to them and how each on works.  After this has been done, lawyers can recommend a process choice based on the situation.  Zeytoonian then outlined the elements of the Collaborative Law process and gave a brief overview of how this structured and planned early negotiation process works and when it can be used.

The Hon. Judith Dein, a Magistrate Judge in the federal district court in Boston, Massachusetts, spoke about the use of mediation in the federal district courts. As a Magistrate Judge, Judge Dein also serves as a mediator if parties in federal case opt for mediation, a service that the federal courts provide at no cost for the mediator.  Judge Dein spoke about her experiences mediating cases in the court, how the federal courts encourage parties in certain cases that are good candidates for mediation early in the litigation process during initial case management conferences.

Jeffrey Catalano, the new President of the Massachusetts Bar Association and a partner at Todd & Weld in Boston, discussed his practice areas of expertise – medical malpractice, products liability and other personal injury matters.  He spoke about some of the moving experiences from situations where victims had some of their emotional needs and interests met through the use of dispute resolution processes.  He also outlined a new program called CARe (Communication, Apology and Resolution), a new endeavor being promoted by the Massachusetts Alliance for Communication and Resolution following Medical Injury (MACRMI).  This program focusing on more open disclosure and communication between patients and doctors, a process that encourages investigation and explanations of what occurred, and taking steps to avoid any recurrence of incidents.  The program also provides opportunities for fair compensation without the need to file a lawsuit, and where appropriate, for an apology to be made.  The new program utilizes mediators to facilitate the processes involved.

Rounding out the ADR program for the conference were panel discussions on the role of the “mindful mediator” as well as a panel on the emerging trends in arbitration.

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