Replacing the “Blame Game” with something better

Posted on August 5, 2016 by adminDRC

In one of the strangest presidential campaigns in American history, one common theme stands out, unfortunately – that of finding fault with the other side. For whatever reasons, politicians spend too much time talking about what their opponent is or has been doing wrong. Donald Trump casts himself as a political outsider. Yet he has already embraced the politician strategy of harping on the other side’s faults (“Lyin’ Ted”, “no energy Jeb”, “crooked Hillary”). Hillary Clinton points out that Trump didn’t offer any new ideas or solutions in his speech and only talked about others. But then she didn’t offer any new ideas either, instead talking about Trump!

Voters complain about this. Yet those same voters quickly cut loose candidates with new ideas, and latched on to the catch phrases about blaming others. The only new things we now know about Hillary or The Donald in all these months are their respective running mates. There have been no suggested solutions or insights for repairing the partisan political logjam in Washington, D.C. or how they will address our many pressing problems. While issues like Benghazi, lack of government experience, careless use of a cell phone and several business bankruptcy filings are all relevant information, we got it already – several months ago. Move on.

People say they are more interested in what is being done to make things run better, success stories in business, government or other endeavors. Yet they are also driven more by a desire to make someone pay than to fix the problem. The conversations on Facebook (today’s water cooler, without the water and without the face time) and elsewhere parrot this same superficial song. Blame the Democrats for not cutting spending. Blame the Republicans for not doing anything constructive. Blame ISIS, the big banks, superpacs, Brexit, the internet!

There is not much gained by laying blame. The preoccupation with finding fault is a different exercise than figuring out what went wrong in order to SOLVE THE PROBLEM and MOVE ON! I’d like to hear how these candidates will reach across the aisle, work with others they disagree with and dissect problems, learn from mistakes, collaborate and build on each other’s ideas. How will they eliminate waste of anything – time, talent, food, energy, resources and money? I recently read about how Thomas Edison was confident he had not failed before he finally invented the light bulb, but that he had found a thousand ways not to make a light bulb. Edison was not interested in blaming anyone for his failures, including himself. He used his mistakes only to help him succeed. How refreshing – and game changing – is that?

In the work of dispute resolution, this is a key distinction. The focus of traditional, adversarial dispute
resolution and litigation are on the past and establishing liability, even when there may not have been
anyone to blame for what was “an accident” or “an honest mistake”. It is largely an endeavor of
pointing a finger, rather than a quest to solve the problem, and lay the groundwork for a more
productive future. There’s a huge difference between figuring out why a light bulb didn’t work and
making an adjustment and looking for someone to give you a bucket of money because the light you
were using didn’t work right.

Most people agree that it make more sense to utilize dispute resolution processes that are focused
on solving problems, getting closure and moving forward than those that look backward and determine
fault. But those same people are still be driven by the emotional pull of laying blame, even when their
rational sides say otherwise.

I suppose we could blame them for that. Or we can all engage in the pursuit of making an emotional
and strategic shift in the way we respond to things that don’t go as hoped. An organization called the
International Academy of Collaborative Professionals (IACP) has a goal of “transforming the way people
resolve conflict worldwide”. In 25 years, it has grown from a handful of like-minded lawyers to over
6,000 members from over 20 countries. I’d love to see it grow to 20,000 and more. I’d also love to see
more articles written with titles like “Getting to Yes”, or “Here’s How I’d Do It” rather than “Not Without
Blame”.

The post Replacing the “Blame Game” with something better appeared first on Dispute Resolution Counsel.

Posted in Collaborative Processes | Comments Off

Replacing the “Blame Game” with something better

Posted on August 5, 2016 by adminDRC

In one of the strangest presidential campaigns in American history, one common theme stands out, unfortunately – that of finding fault with the other side. For whatever reasons, politicians spend too much time talking about what their opponent is or has been doing wrong. Donald Trump casts himself as a political outsider. Yet he has already embraced the politician strategy of harping on the other side’s faults (“Lyin’ Ted”, “no energy Jeb”, “crooked Hillary”). Hillary Clinton points out that Trump didn’t offer any new ideas or solutions in his speech and only talked about others. But then she didn’t offer any new ideas either, instead talking about Trump!

Voters complain about this. Yet those same voters quickly cut loose candidates with new ideas, and latched on to the catch phrases about blaming others. The only new things we now know about Hillary or The Donald in all these months are their respective running mates. There have been no suggested solutions or insights for repairing the partisan political logjam in Washington, D.C. or how they will address our many pressing problems. While issues like Benghazi, lack of government experience, careless use of a cell phone and several business bankruptcy filings are all relevant information, we got it already – several months ago. Move on.

People say they are more interested in what is being done to make things run better, success stories in business, government or other endeavors. Yet they are also driven more by a desire to make someone pay than to fix the problem. The conversations on Facebook (today’s water cooler, without the water and without the face time) and elsewhere parrot this same superficial song. Blame the Democrats for not cutting spending. Blame the Republicans for not doing anything constructive. Blame ISIS, the big banks, superpacs, Brexit, the internet!

There is not much gained by laying blame. The preoccupation with finding fault is a different exercise than figuring out what went wrong in order to SOLVE THE PROBLEM and MOVE ON! I’d like to hear how these candidates will reach across the aisle, work with others they disagree with and dissect problems, learn from mistakes, collaborate and build on each other’s ideas. How will they eliminate waste of anything – time, talent, food, energy, resources and money? I recently read about how Thomas Edison was confident he had not failed before he finally invented the light bulb, but that he had found a thousand ways not to make a light bulb. Edison was not interested in blaming anyone for his failures, including himself. He used his mistakes only to help him succeed. How refreshing – and game changing – is that?

In the work of dispute resolution, this is a key distinction. The focus of traditional, adversarial dispute
resolution and litigation are on the past and establishing liability, even when there may not have been
anyone to blame for what was “an accident” or “an honest mistake”. It is largely an endeavor of
pointing a finger, rather than a quest to solve the problem, and lay the groundwork for a more
productive future. There’s a huge difference between figuring out why a light bulb didn’t work and
making an adjustment and looking for someone to give you a bucket of money because the light you
were using didn’t work right.

Most people agree that it make more sense to utilize dispute resolution processes that are focused
on solving problems, getting closure and moving forward than those that look backward and determine
fault. But those same people are still be driven by the emotional pull of laying blame, even when their
rational sides say otherwise.

I suppose we could blame them for that. Or we can all engage in the pursuit of making an emotional
and strategic shift in the way we respond to things that don’t go as hoped. An organization called the
International Academy of Collaborative Professionals (IACP) has a goal of “transforming the way people
resolve conflict worldwide”. In 25 years, it has grown from a handful of like-minded lawyers to over
6,000 members from over 20 countries. I’d love to see it grow to 20,000 and more. I’d also love to see
more articles written with titles like “Getting to Yes”, or “Here’s How I’d Do It” rather than “Not Without
Blame”.

The post Replacing the “Blame Game” with something better appeared first on Dispute Resolution Counsel.

Posted in Collaborative Processes | Comments Off

Replacing the “Blame Game” with something better

Posted on August 5, 2016 by adminDRC

In one of the strangest presidential campaigns in American history, one common theme stands out, unfortunately – that of finding fault with the other side. For whatever reasons, politicians spend too much time talking about what their opponent is or has been doing wrong. Donald Trump casts himself as a political outsider. Yet he has already embraced the politician strategy of harping on the other side’s faults (“Lyin’ Ted”, “no energy Jeb”, “crooked Hillary”). Hillary Clinton points out that Trump didn’t offer any new ideas or solutions in his speech and only talked about others. But then she didn’t offer any new ideas either, instead talking about Trump!

Voters complain about this. Yet those same voters quickly cut loose candidates with new ideas, and latched on to the catch phrases about blaming others. The only new things we now know about Hillary or The Donald in all these months are their respective running mates. There have been no suggested solutions or insights for repairing the partisan political logjam in Washington, D.C. or how they will address our many pressing problems. While issues like Benghazi, lack of government experience, careless use of a cell phone and several business bankruptcy filings are all relevant information, we got it already – several months ago. Move on.

People say they are more interested in what is being done to make things run better, success stories in business, government or other endeavors. Yet they are also driven more by a desire to make someone pay than to fix the problem. The conversations on Facebook (today’s water cooler, without the water and without the face time) and elsewhere parrot this same superficial song. Blame the Democrats for not cutting spending. Blame the Republicans for not doing anything constructive. Blame ISIS, the big banks, superpacs, Brexit, the internet!

There is not much gained by laying blame. The preoccupation with finding fault is a different exercise than figuring out what went wrong in order to SOLVE THE PROBLEM and MOVE ON! I’d like to hear how these candidates will reach across the aisle, work with others they disagree with and dissect problems, learn from mistakes, collaborate and build on each other’s ideas. How will they eliminate waste of anything – time, talent, food, energy, resources and money? I recently read about how Thomas Edison was confident he had not failed before he finally invented the light bulb, but that he had found a thousand ways not to make a light bulb. Edison was not interested in blaming anyone for his failures, including himself. He used his mistakes only to help him succeed. How refreshing – and game changing – is that?

In the work of dispute resolution, this is a key distinction. The focus of traditional, adversarial dispute
resolution and litigation are on the past and establishing liability, even when there may not have been
anyone to blame for what was “an accident” or “an honest mistake”. It is largely an endeavor of
pointing a finger, rather than a quest to solve the problem, and lay the groundwork for a more
productive future. There’s a huge difference between figuring out why a light bulb didn’t work and
making an adjustment and looking for someone to give you a bucket of money because the light you
were using didn’t work right.

Most people agree that it make more sense to utilize dispute resolution processes that are focused
on solving problems, getting closure and moving forward than those that look backward and determine
fault. But those same people are still be driven by the emotional pull of laying blame, even when their
rational sides say otherwise.

I suppose we could blame them for that. Or we can all engage in the pursuit of making an emotional
and strategic shift in the way we respond to things that don’t go as hoped. An organization called the
International Academy of Collaborative Professionals (IACP) has a goal of “transforming the way people
resolve conflict worldwide”. In 25 years, it has grown from a handful of like-minded lawyers to over
6,000 members from over 20 countries. I’d love to see it grow to 20,000 and more. I’d also love to see
more articles written with titles like “Getting to Yes”, or “Here’s How I’d Do It” rather than “Not Without
Blame”.

The post Replacing the “Blame Game” with something better appeared first on Dispute Resolution Counsel.

Posted in Collaborative Processes | Comments Off

Collaborative law, planned early negotiations focus of MBA ADR panel

Posted on June 8, 2016 by adminDRC

Most people who are in a dispute think about mediation or arbitration as alternatives to lawsuits and litigation. But there are several other process choices that people have for how to resolve their disputes. That critical choice of which process to use is often the most important choice people make in resolving their legal issue. Among these other choices are Collaborative Law, Case Evaluation and a general approach called Planned Early Negotiation or PEN.

Four talented and experienced practitioners teamed up for a lively and enlightening panel presentation and discussion on these other approaches to resolving disputes on May 17 at the MBA office in Boston. The program was the last in a 2016 series of “Best ADR Practices” presented by the Massachusetts Bar Association’s (MBA) Alternative Dispute Resolution (ADR) Committee. Brian Jerome, Esq. of Massachusetts Dispute Resolution Services in Boston and ADR Committee Chairman, along with MBA President Robert Harnais, Esq., welcomed a full and engaged audience to the program. Jerome also announced that the ADR Committee will be expanded and transformed into the new Dispute Resolution (DR) Section of the MBA starting in September, 2016 and welcomed people to join it.

Michael Zeytoonian, Esq. of Dispute Resolution Counsel, LLC in Wellesley, opened the panel discussion and served as its moderator. Zeytoonian set the tone for these “cutting edge” DR processes, suggesting a different approach to resolving disputes by designing the DR process to be responsive to the situation. He noted that processes like Collaborative Law offer parties the flexibility and agility to be shaped to the circumstances of each unique dispute, and intentionally designed for the goal of resolving the dispute efficiently and creatively.

 

planned early negotiationsPaul Faxon, Esq, a transactional attorney whose firm is in Waltham, explained the basic elements and components of Collaborative Law, specifically focusing on its application in small, closely- held or family business disputes. Faxon noted that this approach’s effectiveness when ongoing relationships are important to the parties, where the parties want to control their destinies and not turn the decision-making over to a third party, and where cost and time efficiency is valued. He highlighted some of the basic elements of Collaborative Law including the open and voluntary sharing of all relevant information and the shared retaining of neutral experts that can freely and independently serve as a resource to the negotiation process.

David Consigli, a CPA and business valuation expert with the CPA firm of Alexander Aronson & Finning in Boston and Westborough, spoke about the advantages to using a neutral expert in a Collaborative case or a Mediation. He compared the role of an independent expert providing value to all parties as opposed to being hired by either the plaintiff or the defendant. He pointed out the value of having expert information available in business break-ups or partnership disputes, as well as the importance of valuation information in business succession planning.

John Fieldsteel, Esq., a lawyer, mediator, arbitrator and case evaluator whose specialty area of practice is complex construction cases, spoke about using case evaluation as a tool and an approach that can often be transitioned into mediation or used to assist a mediation. Case evaluation gives the parties a better sense of the strengths and weaknesses of their case as well as good indication of what the range of damages would be. Fieldsteel talked about the value to the parties of giving them good information, often confidentially, about the strength or viability of their positions and how useful this neutrally given information is in reaching a settlement.

dispute resolution questions

Jonathan Fitch asking a question

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MBA ADR committee weighs in on mediation at BC law

Posted on May 20, 2016 by adminDRC

For some of the students in Professor Erika Gray’s Mediation course at Boston College Law School, the class on April 25 was the last class of their law school career. For others, the last class of the year. But that didn’t stop many of the class from engaging in an active discussion about mediation and its use in resolving disputes, as well as its value as a tool in their tool box for those about to begin their careers as lawyers.

Massachusetts Bar Association (MBA) Alternative Dispute Resolution (ADR) Committee chairman Brian Jerome of Massachusetts Dispute Resolution Services was joined by fellow ADR Committee members and mediators Jeffrey Stern of The Mediation Group, Michael Zeytoonian of Dispute Resolution Counsel, LLC and Merriann Panarella as panelists for a presentation on Mediation at BC Law. The four experienced alternative dispute resolution (“ADR”) practitioners presented a number of looks at mediation, starting with how each of their respective legal careers led them to mediation. From there, they shared anecdotal stories of their respective experiences with mediation as well, both as neutrals and also as lawyers representing parties in mediation.

Prof. Gray invites members of the ADR Committee to come and speak to her law students at both BC Law School and Suffolk Law School each year. She opened the program by asking panelists several questions about the types of cases that are good candidates for mediation, the unique cases in which mediation was used, the styles of mediation used, the challenges presented by parties in mediation, mediation’s place in the broader spectrum of Dispute Resolution processes and how a young lawyer might go about developing a mediation practice. Students were interested in the differences between mediation and arbitration, when to use each, and the challenges for lawyers in shifting from representing clients in the adversarial approach of litigation to an interest-based, problem solving type approaches like Collaborative Law or Mediation. They were also interested in how they could include Mediation in their own practices and young careers.

The MBA ADR Committee frequently presents lectures to the area law students as part of its mission of educating the members of the bar, fellow practitioners, law students and the public on the uses of ADR and the value of processes like Mediation, Collaborative Law, Arbitration, Conciliation and other methods of ADR. In the fall of 2016, the Committee will be converted to a full MBA Section status, initiating the new MBA Dispute Resolution Section.

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Zeytoonian & Faxon provide collaborative law training program in Holland

Posted on April 5, 2016 by Michael Zeytoonian

Holland’s Collaborative Law Association hosted a three-day Collaborative Law Training for lawyers, financial advisors and executive coaches from March 17 through March 19 in the resort town of Nunspeet, The Netherlands.  The training was held at the Villa Vennendal in Nunspeet.

Two Massachusetts lawyers, Michael Zeytoonian and Paul Faxon, were invited by the Dutch Association of Collaborative Professionals to present the intensive training, focusing on using Collaborative Law in business disputes.  Members from all three of Holland’s Collaborative Law regional practice groups attended and were actively engaged in the workshops, role plays and other demonstrations.  A local training team from The Netherlands joined Faxon and Zeytoonian and conducted a half day training in Dutch, focusing on using Collaborative Law in divorce matters.

villa-vennendal

 

The training focused on the basics of Collaborative Law on day one.  On day two and three, the participants applied Collaborative Law in three different types of cases – a partnership breakup, a construction case dispute with multiple parties and subcontractors, and a family business/family inheritance dispute. Financial advisors and executive coaches served as neutrals in the Collaborative Law role plays for the group.

This is the third time a Collaborative Law training team has been invited to The Netherlands to train lawyers and other professionals in Collaborative Law.  On prior occasions, the team of Rita Pollak of Tucson, Arizona (formerly of Massachusetts) and Cathy Heenan of Massachusetts, were invited to do those trainings.

The Collaborative Law community in Holland is fairly new, having started only a few years ago, but very committed and energized.  This year, the national Dutch association wanted to expand the use of Collaborative law into business, employment and other areas of practice.

Both Zeytoonian and Faxon have trained groups in Collaborative Law in Europe before, Zeytoonian in Ireland and Faxon most recently in November, 2015 in the Basque Region of Spain.

paul-speaking

“We were energized by the enthusiasm and engagement of the participants in Holland over three days of training,” Zeytoonian noted.  “Collaborative Law, particularly its use in business and other non-divorce disputes, is an emerging and evolving practice, both in the United States and even more so in Europe, the United Kingdom, Canada, Ireland and Australia.  One of the valuable features of Collaborative Law is its adaptability,” he added, “which is important because each country presents a different set of procedural rules and court structures.  It calls on us as practitioners to be responsive to the situation each dispute presents, and Collaborative Law is a process in which creativity and flexibility can flourish,” Zeytoonian observed.

Paul Faxon also commented on Collaborative Law’s utility.  “Collaborative Law is particularly ideal in family-owned or closely-held businesses, where preserving relationships, maintaining confidentiality and being cost and time efficient – all critical factors for smaller businesses – are important.”  Acknowledging that approximately 80% of the businesses in The Netherlands are family-owned, Faxon pointed out that “Collaborative law is a perfect fit, and is especially welcomed by those who are entrepreneurial in nature and like to maintain control over both the process and the outcome.  It is a dispute resolution process that empowers clients and allows them, along with their lawyers and other Collaborative professionals, to use their creativity to come up with the best possible resolution of their dispute,” he noted.

Faxon and Zeytoonian will team up again on a presentation on Collaborative Law offered by the Massachusetts Bar Association’s (MBA) Alternative Dispute Resolution Committee on May 17 at the MBA office in Boston.  They will be joined in a panel discussion that evening by financial advisor David Consigli and lawyer/mediator/arbitrator John Fieldsteel.

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Getting your day in court – what does it really mean? And how can we get it for you?

Posted on March 10, 2016 by Michael Zeytoonian

“I want my day in court.”

“I was wronged and something’s got to be done about it. We need to fix this.”

“What happened to me wasn’t right and wasn’t fair.  I want some justice.”

 “I want the other side to feel some pain.  I want some vengeance.”

I often hear these sentiments in my initial phone call or meeting with a new client.  It’s understandably an emotion-driven conversation.  When someone has been wronged or dealt what seems like an unfair setback, I don’t expect the person to be cool, calm and collected.

But part of our job as lawyers is to remain calm and grounded in the face of the emotional storm of our clients.  It doesn’t mean we don’t feel their pain or don’t get passionate about what we do.  In fact it is that very passion to help our clients in their time of deep need that fuels me to stay focused and centered. To help them best, I need to be the voice of reason and provide good judgment, wise counsel and a well thought out course of action, amidst a swirl of emotions that often includes anger, resentment, loss, frustration, disappointment and/or despair.

What does it really mean to satisfy our clients’ stated desire of getting their day in court?  How do we as lawyers and conflict resolution professionals satisfy that desire when we know our client isn’t likely to even see that courtroom?

Here is the truth about getting that day in court:  Of the cases that get filed with courts, less than 3% actually go to trial.  So 97% of the time, the client isn’t going to get that coveted day in court.  That case will get dismissed or get settled before a trial ever happens.

Let’s take this reality check a bit further.  If one could “handicap” those few cases that get tried, they are usually cases that a client has about a 50-50 chance of winning.  If the odds were tipped too far one way or the other, the case would have settled. So since only 3% of the cases get to trial, your chances of getting to trial and winning at trial are about 1.5%!

Would you decide to move forward with this litigation course of action if you knew these odds?  When your lawyer tells you that you aren’t very likely to get the day in court you want, he isn’t kidding.

Our clients told us that getting that session in which the other side had to quietly listen to their stories without being able to interrupt, refute or shout down the speakers satisfied a deep need.  …Even if they didn’t accomplish any monetary settlement, that “day in court” moment was priceless. 

And yet, many people start down this path anyway.  I have to believe that if their lawyer transparently and honestly gave them those odds, they wouldn’t go that route.  Most clients are pretty smart people, except when their minds are clouded by their fired up short-term emotions.  Or unless their lawyers give them some other message that results in clients taking this course of action designed to “prepare for trial”.

Our challenge as good lawyers is to figure out another way of satisfying our clients’ needs to get their day in court, and maybe, just maybe, feel like they won.  How do we get the other 97% their day in court?

Getting your day in court

We ask them open-ended questions about what that “day in court” means to them.  What is behind that desire?  What would have to happen to make them feel like they got that day?  What would they do with that moment that they find themselves standing in the courtroom, the eyes and ears of the judge and/or jury fixed on them?  What do they want the judge, or the jury, or the party on the other side of this dispute to know?

I believe it’s not getting to trial that matters; it’s satisfying my clients’ interests as to what that trial represents to them that matters most.  Once I know that, I can be more valuable to them.

One client in a sexual harassment case said that “getting her day” to her meant making sure the settlement included preventive measures so that no future employees of her employer would ever have to go through what she went through, and there was a meaningful corrective action taken against the wrongdoer(s).  A court could not have given her that, but our settlement did.

Another set of multiple clients working with our team of four collaborative lawyers were satisfied after their case was resolved without even having to file a complaint, let alone go to trial. What was their day in court?  During a mediated session, the multiple parties on the other side (the would-be defendants) had to listen to the four lawyers tell the emotional stories of their clients and what they endured at the hands of the other side.  The stories were told; the other side sat and listened, without comment and without responding at that time.

We asked our clients in a debriefing session how they were doing after that first session of negotiating. To a person, they saw this session as the equalizer.  Our clients told us that getting that one session in which the other side had to quietly listen to their stories without being able to interrupt, refute or shout down the speakers satisfied a deep need.  That was worth more than anything else and even if they didn’t accomplish any monetary settlement, that “day in court” moment was priceless. There was subsequently a large and creative settlement (real property payment in lieu of money), but our clients will tell you that that watching the other side have to sit there quietly and listen to these stories without any interruption was the high point of the case. “That was our day in court,” one of them shared with us after.  The monetary settlement was helpful, but it was the piece of being able to tell their story, even without a judge or jury listening, that was huge.

A day in court means different things to different clients. Odd as it may sound, often the best way to achieve that “day in court” for the clients is not pressing on toward a trial that rarely happens, but by something else that fills that deep need behind the clients’ outwardly stated positions.

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Napoleon’s Army

Posted on March 2, 2016 by Heidi Webb

The image above is probably the best statistical graphic ever drawn, this map by Charles Joseph Minard portrays the losses suffered by Napoleon’s army in the Russian campaign of 1812. Beginning at the Polish-Russian border, the thick band shows the size of the army at each position. The path of Napoleon’s retreat from Moscow in the bitterly cold winter is depicted by the dark lower band, which is tied to temperature and time scales.

Curious and interesting was what I thought when I first looked at the graph above which I received from Jeffrey Stern, a seasoned lawyer; a former litigator who evolved his practice into one of mediation and arbitration. In sending it along, Jeff told me that he’d found it to be a useful reminder for taking the long view. The graph details Napoleon’s army’s 1812 march from the Polish-Russian border into Moscow (the beige bar) and the retreat back out (the black bar), and contrasts soldier fatalities with the harsh weather conditions of that time.

Closer thinking made me wonder how harsh physical environments, be they physical, intellectual, or emotional, impact losses, casualties and outcomes. It also made me think about a particular meeting I’d recently had with Adele, a woman who came to me toward the end of her divorce process. After three years of difficult negotiations, Adele’s lawyer had presented her with a divorce agreement, and it differed in significant ways from the agreements Adele thought she’d already made with her husband. Adele’s husband’s lawyer had advised him that the informal agreements he’d made with Adele were unenforceable, and that she could get him a better financial deal. That deal flew in the face of the good faith dealings Adele thought she’d been having with her husband, the father of her children and the person with whom she’d continue to co-parent.

What does it mean on a personal level to “win a battle and lose a war“? When parents divorce, a family restructures. Oftentimes money and property become the focal point of a divorce, and when people are separating they are of course concerned about their future financial security. However, when that concern becomes the primary focus (to the detriment of attention being paid to children), no settlement (or “spoils of war”) will ever heal the hurt and pain that will be etched into a child’s heart and mind. Is the advice Adele’s husband received wise counsel? Good lawyering? If someone is left with both a “bigger piece of the pie” and a stomach ache after eating it, is that a win? Which brings me back to Napoleon’s army, and the cost/benefit analysis of the march into Moscow and back out again. Did the sustained march through freezing temperatures which resulted in all the deaths justify the attempt to prevail over Russia? Were Napoleon’s tactics warranted when starvation, desertion, typhus and suicide would cost the French Army more men than all the battles of the Russian invasion combined? At what point does the means not justify the ends? How much is too much? I think all of those questions are worth asking, and not just during a war. They’re worth asking at the beginning of a family’s restructuring. Marching ahead without consideration for the consequences can create permanent damage, and to me that seems indefensible.

Heidi R. Webb

We welcome  this guest blog from Heidi-Rachel Webb, a colleague lawyer who is doing some cutting edge work counseling people going through divorces at ConsiliumDivorce.com.  We also welcome Jeffrey Stern, our colleague and an experienced lawyer, arbitrator and mediator at The Mediation Group in Brookline.  His insights on Napoleon’s Russian campaign are highlighted in Heidi’s blog.

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Success Express Workshop focuses on non-competes, contracts and dispute resolution

Posted on February 18, 2016 by Michael Zeytoonian

Spread The News

“The Workplace Minefield of Legal Misinformation”

Michael-Zeytoonian-workshop on non-compete and other contracts

was the topic of the most recent Success Express Workshop in Westborough, MA on February 10, 2016.  The workshop, one in a series presented by the Corridor Nine Chamber of Commerce and sponsored by Commerce Bank, featured Michael Zeytoonian, lawyer, mediator and founding member of Dispute Resolution Counsel, LLC as its presenter.

The primary focus of this “legal misinformation” workshop was on non-compete, non-solicitation and confidentiality agreements, the myths and realities about their enforceability and the keys to drafting enforceable agreements.  Zeytoonian discussed all phases of these restrictive covenants – their non-competition, non-solicitation and confidentiality provisions, as well as their limitations in geographic scope and time periods, and their thoroughness in defining the competition.  He also discussed the status of legislative bills to limit these agreements and how Massachusetts courts typically decide cases about these agreements.

The second emphasis of the workshop was on effective contract drafting.  Zeytoonian referred to good contracts that anticipate problems and address them proactively as the first elements of effective dispute resolution.  He stressed that managing a problem begins with its prevention from ever becoming a dispute.  He urged companies to engage in proactive contract writing by their “primary care lawyers”, rather than opt for boilerplate contracts that are available.  He warned workshop attendees about the “seven deadly clauses” in contracts, urging them to make sure they understand what some of these provisions mean, and whether the provision is good for them or not.

“The value proposition is not so much the words in the contract, but the lawyer’s wise counsel in knowing what to include and what to leave out, so that the contract serves the client’s specific needs,” Zeytoonian suggested.  “Good, preventive contracts, along with the underused resource of independent ombudspersons are key elements in a small business’s line of defense against lawsuits and complaints,’ he advised. 

“Going over the provisions of a contract with your lawyer during their drafting gives you the opportunity to understand what the contract does while you are still calm and before any dispute arises, rather than be forced into a reactive, emotion-driven decision after disputes arise,” Zeytoonian noted.

The workshop also focused on the various options for dispute resolution that are available to businesses.  Zeytoonian explained the basics of several dispute resolution processes- Mediation, Arbitration, Collaborative Law and Litigation – and stressed the importance of choosing the right process for the situation that the dispute presents.  “Too often, people have chosen the wrong process for their circumstances, only to realize it when years have passed and thousands have been spent before the matter gets resolved,” he cautioned.  Zeytoonian also touched on some of the growing areas of workplace disputes –disability and religious discrimination, wage and hour claims and the secondary but dangerous claims of retaliation and spoliation of evidence.

The Corridor Nine Chamber offers several practical-oriented Success Express workshops each year.  The Chamber serves five towns – Westborough, Northborough, Shrewsbury, Grafton and Southborough.

 

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The importance of process, with help from Decisive, by Dan Heath and Chip Heath

Posted on February 4, 2016 by Michael Zeytoonian

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I’ve been reading the latest book by Dan Heath and Chip Heath, Decisive. (They have written two other great books: Made to Stick and Switch.) Many great insights are offered in this book that pertain to decision making and also applicable to how we resolve disputes. I’ll focus on the importance of choosing a good process. Excerpts from Decisive are in quotations.

Decisive identifies “four villains of decision making” – narrow framing, confirmation bias, short-term emotion and overconfidence, and provides strategies for overcoming them. These “four villains” also often obstruct parties in a legal dispute from reaching the best result. Short-term emotion and overconfidence often result in people making the wrong choice of which process they use to resolve their dispute. Decisive Michael Zeytoonian

For example, the short-term emotions of “wanting to get our vengeance” or “making the other side pay for what they did” or “wanting to make them suffer” often lead people to either suing the other side or vigorously defending the other side’s lawsuit. Most of the time, other approaches provide better ways to achieving the party’s goals and satisfying the party’s long-term interests. But because clients only see their side of a dispute at the beginning, their view is usually tainted by overconfidence and leads them to think they have a “slam-dunk” case. That overconfidence often leads them to choose a process and a lawyer that will stoke that overconfidence rather than tempering it with a reality check.

Lawyers trained in Collaborative Counsel or as Settlement Counsel can help people overcome the first two villains by digging beneath the emotion-charged positions to uncover the real interests of the clients. These kinds of lawyers, like trained and talented mediators, are able to counter these two villains by reality testing people’s biases and assumptions and widening the options for resolving the dispute.

Narrow framing and confirmation biases often hinder productive negotiating and block the path to developing better options for resolution. An example of narrow framing is when a party sees only two possible outcomes: Either winning and getting money or losing and getting nothing (zero sum game). Confirmation bias sometimes blurs a party’s ability to read the circumstances or the other party with clarity. Lawyers trained in Collaborative Counsel or as Settlement Counsel can help people overcome the first two villains by digging beneath the emotion-charged positions to uncover the real interests of the clients. These kinds of lawyers, like trained and talented mediators, are able to counter these two villains by reality testing people’s biases and assumptions and widening the options for resolving the dispute.

Decisive also discusses the importance of using processes, as opposed to making quick decisions or trusting your gut. Whether in making career decisions (a study showed that 44% of lawyers would not recommend that a young person pursue a career in law), business decisions (decisions on mergers and acquisitions 83% of the time failed to create value for shareholders) or personal decisions about relationships or retiring, many of our decisions are flawed. Studies showed that using a good process is more important than conducting rigorous analysis. “Superb analysis is useless unless the decision process gives it a fair hearing.” Further, “a better decision-making process substantially improves the results of the decisions, as well as the financial returns associated with them.”

Why is process important? “Because understanding our shortcomings is not enough to fix them. Does knowing you’re nearsighted help you see better?” The only decision-making process that is used widely by people is the pros and cons list idea, first suggested by Benjamin Franklin in 1772, when he suggested a technique he called “moral algebra”. But even this common sense approach is flawed by one of the four villains – biases in our thinking.

Decisive has reinforced my thoughts about the importance of how we approach decision-making and using the right process in resolving disputes as well as in all facets of life.

“A solid process isn’t just good for business; it’s good for our lives.”

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