Mediator as Moral Witness

David Hoffman has written an article based on a talk he gave at the March 2013 Harvard Negotiation Law Review Symposium honoring the legacy of Roger Fisher. David is an attorney, mediator, arbitrator, and founder of Boston Law Collaborative, LLC. He teaches the Mediation course at Harvard Law School, where he is the John H. Watson, Jr. lecturer on Law. In this article, David recounts two stories of conflict and mediation, shares some lessons to be learned from paying attention to the social psychology of conflicts, and ties these lessons to the work of Roger Fisher. Please click the following link to access this piece: Mediator as Moral Witness

 

 

Welcome

The Harvard Negotiation Law Review (HNLR) is one of the country’s leading journals of negotiation and dispute resolution scholarship. HNLR publishes on a variety of articles related to negotiation, mediation, arbitration, and other dispute resolution topics. The journal also hosts an annual symposium and other events addressing current and noteworthy issues in ADR.

This online component of HNLR features topical articles by professors, students, and practitioners of negotiation and alternative dispute resolution.  Check back frequently for important developments in the world of negotiation/ADR, and comment on the negotiation angle to current events.

Posted in ADR

Collaborative Divorce: A Model for Effective Problem-Solving and Prevention

divorceA Review of Forrest S. Mosten, Collaborative Divorce Handbook*
By
Thomas D. Barton**

Introduction

Collaborate Divorce Handbook, by Forrest S. Mosten, delivers what its title suggests–a complete, point-by-point practical guide for lawyers wishing to learn about collaborative divorce techniques.  But this book also offers much more, and to a far broader readership.  It can inspire all lawyers to adopt a stronger, more effective, and more personal approach to clients.  It can inform related professionals–mental health specialists, coaches, and financial advisors–about the process of collaborative divorce and how they may best join in it.  Finally, the warmth and depth of human understanding in this book can prompt reflection on personal values, professional satisfaction, and the possibility of peacemaking.

The Handbook is the latest chapter in Mosten’s life-long quest to make legal services and counseling more accessible and helpful to the average person.  He pioneered the establishment of legal clinics and unbundling of legal services and has been a leading proponent of Preventive Law, problem solving, and mediation.  He has encountered a broad range of human disagreements and observed their attempted resolution using a variety of alternative techniques.  His reflections on the values and principles underpinning Collaborative Law are thereby uniquely mature, and can be applied throughout legal practice. His eloquent and comprehensive approach offers significant benefits for clients and lawyers alike.  Quoting Pauline Tesler, Mosten speaks of changing the understanding of a lawyer’s role, the relationship with one’s client, the ways of approaching other lawyers and parties, and the structure and commitment to the negotiation process.3

Mosten organizes the Handbook as one would approach the counseling of a client: with respect for the reader’s needs, choices, and intelligence.  Mosten certainly instructs, but he also wants us to succeed. Always open-minded and objective, he compares and contrasts a variety of alternative models to collaborative divorce.  He realistically offers vital advice for how to talk with one’s client as well as one’s counterpart attorney about the collaborative approach when one or both may be resistant to its structure or underlying assumptions.  The book supplies dozens of checklists and tips, together with a supplemental website of testimonials, suggestions, and ways to continue in an organized dialogue with other experienced collaborative practitioners.

Understanding Collaborative Law and Building a Collaborative Practice

In exploring Collaborative Law,4 Mosten addresses three basic questions: (1) what is collaborative law; (2) how is it done; and (3) how can the reader get started in a collaborative practice?

The “what” is a philosophy and basic method that unite varying models of Collaborative Divorce.  The philosophy is that collaboration and settlement should be the “last step along the dispute resolution highway,”5 not a mere way-station before the expected destination in court.  If the divorcing parties feel they must resort to court, the collaborative lawyers have essentially failed.  Although subject to variation, the basic method of Collaborative Divorce is a breath-taking innovation.  Attorneys representing both of the divorcing parties agree that they will withdraw from further representation if a settlement is not reached.6 In other words, the attorneys may not represent a collaborative client in court.  Their work is basically at an end.  Mosten quotes Ousky and Webb: “Collaborative attorneys actually sign a contract that commits them–along with you and your spouse–to reaching a settlement.  The contract, called a Participation Agreement, requires the attorneys to withdraw from your case if they can’t resolve all of your issues out of court.”7

The “how” is equal in importance to the “what,” says Mosten.  This is part of the collaborative attitude.8 The what and how begin to merge in this book, a refreshing approach that values the means for achieving ends, as well as the ends themselves.  Concern for the method by which a settlement is obtained pays rich dividends in the future relationships of the parties and their children.  Mosten writes:

The how is the way the parties speak with each other when discussing concerns that each has with the other.  Traditional lawyers often focus on the terms of parenting and financial agreements and try to avoid discussing the how or assume that such toxic and damaging spousal interaction will never change.  Collaborative lawyers believe that by helping parties with the process, lasting settlements occur more frequently and with much reduced transaction costs.9

The collaborative lawyer uses transparency and candor10 to expand both the framing of the problem and the cooperative spirit by which it can be addressed:

The way a problem is defined often dictates its outcome.  Adversarial lawyers . . . may limit the problem and its solution to mirror how a judge would decide the matter if litigated . . . . Collaborative lawyers believe that the legal outcome is just one of the many ways to define the problem.  By opening up new creative perspectives of how a solution may be addressed, settlements can be reached by widening the scope of the problem to include the relationships of all members of the family, how the parties will emotionally handle any solution, and how the result will affect finances now and in the future.11

Once the aims of successful divorce representation are opened up, so also is the method that can and should be used.  This is introduced under the topic of “Values and Principles of Collaborative Law.”  Mosten introduces, and later elaborates, on each of these tenets:

  • Respect and dignity for the other party and other professionals
  • Direct and open communication with the other party and professionals;
  • Voluntary and full disclosure of relevant information and documents necessary to make agreements;
  • Commitment to the healing of the family; [and]
  • Use of interest-based negotiation to try to meet the needs of both parties.12

Lawyers should not take for granted that these attitudes generally prevail in divorce representation or in other areas of practice.  The adversarial system is primarily designed for achieving truth, not for facilitating strong future relationships.  But the adversarial system is the foundation of Anglo-American court procedures, as well as of traditional thinking about lawyers’ professional responsibility.  Indeed, one key element in Collaborative Law practice has raised some legal ethical concerns.  It is the commitment made by collaborative lawyers to refrain from representing clients in court, should settlement negotiations stall or fail.  As Mosten explains , the participation agreement can be a private agreement among parties and professionals or a court order.  This agreement is signed in addition to separate engagement agreements between each client and each professional.  It is important for all parties to understand the agreement terms.  If either party terminates the collaborative process or participates in adversary proceedings in violation of this agreement, the attorneys and all other collaborative professionals should not continue representing the parties, and new attorneys and professionals should be hired.13

In requiring the lawyers to withdraw from further representation in the event that the issues cannot be resolved out of court, some feel that the pressure on collaborative lawyers to settle is simply too strong.  They feel the client’s interest could be compromised by the lawyer’s felt need to continue the representation.  Some others are uncomfortable with the possibility of one lawyer forcing a withdrawal of another attorney’s representation.14 Mosten is straight-forward in his defense that lawyers using this “disqualification” clause remain within the traditional responsibilities to the client:

If you serve as a lawyer for a client who decides to use collaborative divorce, your client is entitled to the same professional obligations of competence and loyalty to which you would [be] obligated in any other lawyer arrangement.  In concrete terms, this means that you have a duty to pursue the client’s objectives, protect your client from financial harm and legal exposure, inform your client of legal rights, produce competent work, keep all attorney-client communications confidential, avoid conflicts of interest, and ensure that your fees are fair and that clients understand them.  Although your approach may differ from the traditional model, you are still a lawyer.15

For additional help, Mosten also supplies a section entitled “Questions and Answers About Ethical and Competent Service,” which addresses issues arising for lawyers living in states both with and without specific collaborative enabling statutes.16

Furthermore, says Mosten, responsible practice requires that an attorney walk a new client step-by-step through the process of obtaining an informed consent of a client, explaining each of the alternative models of representation that are available.  This should be done even if the lawyer is not willing to represent the client under one or more of those alternatives.17 Mosten supplies a well-organized template to direct this discussion, entitled “A Guide for Discussion with Clients on Collaborative Practice.”18 Each of the various aspects of alternatives of collaborative representation is shown in a column, parallel to which are additional columns describing first the benefits, and then the risks, of those choices.19

Included in one row of the template, for example, is an entry marked “Trained Collaborative Professionals.”  That appears because the collaborative model does not assume mere collaboration among lawyers and clients.  Included also in the idea of Collaborative Divorce is participation by one or more other professionals: psychologists, child specialists, divorce coaches, mediators, and financial planners.  The family is seen as a system comprised of a variety of people and needs, present and future, not all of which are necessarily best addressed by lawyers.

The particular roles and responsibilities of each of these specialists are valuably analyzed.20 In considering how those other professionals may be used, however, Mosten again does not urge one particular model.  Instead, he describes alternative structures, compares their advantages and shortcomings, and stresses choice, practicality, and flexibility.  This part of the Handbook is especially useful for lawyers who may be inexperienced in how to work with other professionals.  Mediators, coaches, psychologists and financial analysts involved in divorce work would also benefit greatly from the dozens of practical tips as well as broad understanding of collaborative structure that Mosten provides.

Obviously, adding these other professionals increases the cost of forging a divorce settlement, a concern for both the lawyers and the parties who must ultimately bear those costs.  On the positive side, this team approach still is likely to be less expensive than resort to litigation.21 Furthermore, the resulting agreement and more positive relationships may prevent many future problems with unknown but potentially substantial costs.  On the other hand, “there appears to be no data showing [Collaborative Divorce] is less expensive than traditional lawyer-negotiated settlements . . . and no data comparing the cost of collaborative divorce to mediation, even with consulting attorneys.”22 That raises at least two issues.  First, how should one discuss these costs with a client so that informed consent is reached?  And second, what steps may be taken to reduce the costs of using collaboration, especially with a full interdisciplinary team?

On the first issue, Mosten’s informed consent template sets out the benefits and risks to the client.  On the benefits side,

You and your spouse may benefit from using a team of collaborative professionals with different skills.  Collaborative professionals usually have had special training to help promote constructive settlements.  By investing the time and money for professional training, collaborative professionals demonstrate a commitment to constructive negotiation.23

The risk, however, is that “[y]ou or your spouse may feel some pressure to use more professionals than you want or feel that you can afford.”24

As possible mitigation of some of those costs as well as to broaden the choice and effectiveness of the collaborative process, Mosten includes analysis for which he is perhaps uniquely qualified.  He draws upon his years of varied experience in the chapter entitled “How Collaborative Divorce Works with Mediation and Unbundled Legal Services.”25 Here, Mosten describes how “mediation can be a partner with collaborative divorce”26 and how unbundling is an inherent, but flexible part of collaborative lawyering.

Mediation, of course, is a well-known process in which lawyers may act in the role of either the neutral mediator or as the representative of a party engaged in mediation.  Mosten systematically sets out a broad variety of ways in which mediation could be used to augment the collaborative approach, or as an alternative to it.  In each variation, Mosten describes the differing roles that could usefully be played by the lawyer.

Although expensive, “having collaborative representatives plus a mediator may be the best of all worlds . . . . ”27 “Many clients want to use the neutrality of mediation but also want the advice and protection of an attorney who would both be mediation friendly and supportive of it and affordable.”28 Mediation could, for example, be a useful adjunct to collaborative divorce at the beginning of the process.  Mosten describes this possibility from the client’s perspective:

If you arrange for a mediator to join the collaborative process from (or near) the beginning, you may design a process that helps your clients have it all ways.  Your client gets your support, advice, and feeling of your protection, and the other party gets similarly taken care of by the other collaborative lawyer or team.  At the same time, the mediator can set a neutral and safe atmosphere while playing a more jarring role as agent of reality, testing the parties’ positions and trying to gain movement toward consensus and a result that both parties can live with.29

Alternatively, mediation can be useful if problems develop, or to resolve conflicts among the various professionals.30 Mosten explains the common-sense nature of this:  Often you and your collaborative partner can reach agreement without a mediator.  However, if trouble develops, you need to stress the mind-set: “It is not a choice between the collaborative process and litigation.  It is a choice between the current structure of the collaborative process that is not resulting in an agreement and the challenge of finding a workable new structure that will get the job done .”31 Therefore, rather than terminate the collaborative process, disband the collaborative professional team, and require the parties to obtain litigation counsel to ready themselves for a courthouse battle, you can build in mediation as the fail-safe logical next step if either or both parties are ready to terminate the collaborative process.32

Unbundling is a less familiar technique, but it can help trim the costs for a client who wants a collaborative divorce process:

In unbundling . . . the client is in charge of selecting one or several discrete lawyering tasks contained with the full-service package.  The client specifically provides for which services the attorney will provide, how extensive the services will be, and how to determine the communication and decision-making control between the client and the attorney.33

As Mosten describes it, attorneys outside of the collaborative context can separate out various services like advice, research, factual collection and investigation, drafting, negotiation, and court appearances.34 Those aspects that a client feels capable of undertaking alone, or with the lawyer as a background coach, can be removed from the formal scope of representation (and billing).

Interestingly, relatively little experimentation with unbundling has occurred as of yet within the collaborative divorce process.35 As Mosten puts it, to date “the growth of collaborative divorce has been among clients who otherwise can afford lawyers, and very few collaborative divorce professionals have focused on ways to penetrate the underserved and otherwise unrepresented market.”36

Conclusion

Mosten delivers a wealth of information and advice, most of which cannot be discussed in this short review.  Certainly Collaborative Divorce is growing quickly, and Mosten’s Handbook is essential reading for any family specialist, regardless of legal training.  Beyond that, any lawyer interested in the emerging paradigm shift in legal thinking and method that several writers have identified can get a rich sense of its attributes through Mosten’s work.  Finally, those who believe in the power of empathy, reason, and respectful communication–values that historically gave rise to the Rule of Law–can be encouraged from this book.  Even in one of life’s most difficult, intimate, and emotional settings–the dissolution of a family–Mosten shows that lawyers can play an important role in promoting peaceful and productive transitions.


* Forrest S. Mosten, Collaborative Divorce Handbook: Helping Families Without Going to Court (Jossey-Bass, 2009) [hereinafter Handbook].

** Louis and Herminone Brown Professor of Law, California Western School of Law.

3 Handbook, supra note 1, at 6, 7.

4 “Collaborative Law” is typically used as a synonym phrase for “Collaborative Divorce” because to date the model of collaborating lawyers representing different parties has been employed almost exclusively in divorce settings.  Theoretically, however, the attitudes and skills underpinning collaborative divorce could begin to be employed toward resolving legal issues beyond divorce or family law.

5 Handbook, supra note 1, at 8.

6 Id. at 22, 29.

7 Id. at 29, quoting Ronald D. Ousky & Stuart Webb, The Collaborative way to Divorce 6 (2006).

8 Id. at 14.

9 Id.

10 Id. at 15.

11 Id. at 14.

12 Id. at 21.

13 Id. at 29.

14 For a thorough and insightful analysis of the ethical implications of various permutations of disqualification clauses in Collaborative Agreements, see Scott R. Peppet, The Ethics of Collaborative Law, 2008 J. Disp. Resol. 131 (2008).

15 Handbook., supra note 1, at 45, 46.

16 Id. at 140-145.

17 Id. at 129, 130.

18 Id. at 146-150.

19 Id.

20 Id. at 52-58.

21 Id. at 64.

22 Id.

23 Id. at 147.

24 Id.

25 Id. at 59-77.

26 Id. at 64.

27 Id. at 68.

28 Id.

29 Id. at 74.

30 Id. at 75-76.

31 Id. at 75.

32 Id.

33 Id. at 59-60.

34 Id. at 61-62.

35 Id. at 64.

36 Id.

Originally published to HNLR Online on Dec. 28, 2009.

Making Settlements Stick: How to Encourage Compliance with Mediated Agreements

By Stephanie Singer

Even though mediated settlements often have the force of law behind them, no party wants to have to go to court or return to the negotiating table to enforce an agreement.There are a number of steps a mediator can take to encourage parties to honor their commitments, both during the mediation session and in the structure of the resulting agreement.

Emphasize the Parties’ Relationship

Parties are more likely to comply with an agreement if they value their relationship with each other.[1]Therefore, during the mediation, you should focus on their relationship, placing it on the table directly as one of the issues in the mediation.Ask the parties—either in joint session or, if it would be more comfortable, in private caucus—to explain how they each value their relationship with the other party, and how they would like to see the relationship change or progress as a result of the mediation.Doing so will prime the parties to consider the relationship an integral part of the final solution.If the mediation serves to improve the relationship between the parties, they may be more likely to comply with the agreement as a way to avoid damaging the relationship and losing the progress that was made during the mediation.

Remain Impartial

Take all steps to ensure that the process is fair, as parties are more likely to comply with an agreement that they feel was the result of a fair process.[2]A keystone of fairness is mediator impartiality, one of the core principles of mediation.[3]Do not take sides and avoid even the appearance of partiality.[4]Mediators should be free from favoritism, bias, or prejudice.[5]A fair process is one in which both parties have the opportunity to fully tell their story and in which all parties are accorded the same level of respect.

Encourage Active Participation

Because parties are more likely to comply with an agreement that they took part in developing,[6] encourage all parties to participate in the idea-generation process.During the mediation session, allow the parties to brainstorm ideas for a final settlement, pushing them to come up with as many possible solutions as they can.None of the ideas should be evaluated; brainstorming time is for idea generation only.[7]Reassure the parties that suggesting an option does not mean that the party supports it or would necessarily commit to it.The goal is merely to get as many ideas—feasible and not—out on the table as possible.The longer the list of ideas, the more options the parties have from which to choose, and the more likely it is that some combination of them will be acceptable to everyone at the table.[8]

Let the Parties Lead

When the parties attempt to set the outlines of a final agreement, refrain from recommending any particular solution and don’t attempt to talk one party into a solution that the other party is willing to approve.Parties are more likely to comply with agreements if they did not feel coerced into accepting them,[9] so be particularly careful to avoid any perception of coercion or pressure.A facilitative, rather than evaluative, style of mediation would be best suited for situations in which agreements are not enforceable.[10]Facilitative mediators focus on helping parties come to an agreement on their own, whereas evaluative mediators may come up with or recommend particular solutions.[11]In order to keep the degree of coerciveness down, be as facilitative as possible, simply managing the process by which parties develop and refine their own solutions.

Draft It Yourself – In Their Words

The agreement should be finalized in written, rather than oral, form, even if the parties are illiterate.[12]A written document serves as proof that the parties engaged in mediation and came to a settlement.It also helps parties work out details that might not be contained in an oral agreement.[13]If permitted by law, you should draft the final agreement, so that neither party has a chance to influence it at the last minute with biased wording, and so that neither party even suspects that their counterpart may do so.[14]During the process of drafting, include both parties by asking for their advice and input.Be sure to attribute various provisions or phrases to each party, so that the parties feel that their input made it into the final draft.It should be drafted as much as possible in the words of the parties who have generated the solutions.[15]This will maximize their ownership of the agreement and thereby maximize the chances for compliance.

Sign and Date

All parties should sign the agreement.Their signature serves as a promise that they will fulfill the terms they have agreed to.Although not legally binding, a signature can have symbolic significance.[16]Formalities such as signatures serve a cautionary function, requiring parties to reflect on the agreement into which they are about to enter and deliberate on its wisdom.[17]You may even want to consider asking both parties to take an oath to uphold the terms of the agreement.Although there is no legal significance to this, it imparts to the parties the seriousness of the agreement and may cause them to think twice before violating it.[18]It will serve to “awaken the [party’s] conscience and impress the [party’s] mind with the duty to [follow through with their promises.]”[19]The final agreement should also include a review date, a mutually agreeable date by which the terms of the agreement must be fulfilled.[20]The parties can agree to return to mediation or take other steps if the agreement has not been fulfilled by the review date.This gives parties a tangible end date by which to comply with the agreement and gives an aggrieved party some recourse for lack of compliance.

Include Reciprocal Promises

The mediation agreement should include reciprocal promises.[21]This serves two purposes.First, parties are more likely to comply with an agreement that they feel is fair, and an agreement may seem fairer if both parties are promising to do something.Second, if each party is counting on the other to fulfill a promise, this provides an additional layer of encouragement.If one party does not live up to her promises, the other party will not live up to his, thereby causing the first party to miss out on something that would have benefitted her.In a sense, each party can hold his part of the agreement hostage until he feels satisfied that the other party will live up to her part.This is a type of self-enforcement mechanism.

Specify the Consequences of Noncompliance

The final agreement can also include contingency provisions setting out what will occur if a party does not live up to his end of the bargain.Each party can think of consequences that he would prefer to avoid, and then give the other party permission to effect those consequences if the party fails to comply with the agreement.This is a way that parties can signal to each other that they are serious about their promises.When each party decides whether to comply with the agreement or not, it will consider what the other party is likely to do as a result.If the first party can make a credible commitment, the second party will take this into account when deciding whether to comply.[22]Interdependent promises with negative consequences for lack of compliance give the parties a way to make credible commitments to each other.

Mediating Permanent Solutions

These are just some of the techniques that are likely to increase the chances that parties to a mediated settlement will stay true to their terms.Inspiring their fidelity to these agreements can go a long way toward achieving lasting success in resolving disputes through mediation.


Stephanie Singer is a 3L at Harvard Law School. She is the co-editor-in-chief of Harvard Negotiation Law Review.

1 Edith Brown Weiss, Understanding Compliance with International Environmental Agreements: The Baker’s Dozen Myths, 32 U. Rich. L. Rev. 1555, 1570 (1999).

2 Dean G. Pruitt, Robert S. Peirce, Neil B. McGillicuddy, Gary L. Welton, & Lynn M. Castrianno, Long-Term Success in Mediation, 17 Law & Hum. Behav. 313, 327 (1993).

See, e.g., Model Standards of Conduct for Mediators Standard II (2005).

Id.

Id.

6 Harvard Mediation Program, Drafting Small Claims Settlements, Harvard Mediation Program Basic Training Manual (Spring 2009) (on file with author).

Id.

Insight Collaborative and the United Nations Development Programme, Maison de la Justice Mediator Training Manual 21 (2009) (on file with author).

9 Marc Galanter & Mia Cahill, Symposium on Civil Justice Reform: Most Cases Settle: Judicial Promotion and Regulation of Settlements, 46 Stan. L. Rev. 1339, 1382 (1994).

10 For a discussion of the different styles of mediation, see Leonard L. Riskin, Understanding Mediators’ Orientations, Strategies and Techniques: A Grid for the Perplexed, 1 Harv. Negot. L. Rev. .7 (1996).

11 Id.

12 Insight Collaborative, supra note 8, at 40.

13 John D. Calamari & Joseph M. Perillo, Contracts 294 (3d ed. 1987).

14 Some jurisdictions regulate the ability of mediators to draft settlements.For non-lawyer mediators, drafting may constitute the unauthorized practice of law.This is the case in New York, for example.Suzanne L. Brunstring, Taking the Collaborative Approach, New York Family Law Strategies,*15 (2009).For mediators who are also lawyers, drafting may be in violation of the restriction not to represent opposing parties on the same matter.O. Russel Murray & Stephen A. Bailey, Ethics in Negotiation and Mediation for the Florida Attorney, Florida Bar Journal *18 (May 2008).

15 Harvard Mediation Program, supra note 6.

16 3-10 Corbin on Contracts § 10.2

17 Lon Fuller, Consideration and Form, 41 Colum. L. Rev. 799 (1941).

18 This same idea is behind the U.S. Federal Rules of Evidence’s requirement that parties swear or affirm to tell the truth before being admitted as witnesses.Fed. R. Evid. 603.

19 Id.

20 Insight Collaborative, supra note 8, at 40.

21 Harvard Mediation Program, supra note 6.

22 Principles of decision analysis and the strategic value of credible commitments developed by business strategy scholars come into play here.See, e.g., Luis M. B. Cabral, Introduction to Industrial Organization 48 (2000).


Originally published to HNLR Online on Jul. 24, 2009.

Two Legal Rivers Converge in Collaborative Law

By Michael Zeytoonian, Esq. & R. Paul Faxon, Esq.

Transactional law, centered on structuring voluntary and private business deals, and civil litigation, involving legal disputes between parties who need the public courts to impose a judgment, occupy different worlds in the practice of law.  On those rare occasions that these legal disciplines do intersect, it is neither by design nor is it typically welcomed with enthusiasm. However, one noteworthy exception exists – in the freeing and creative world of collaborative law.  Within the framework of resolving disputes collaboratively, the skill sets and insights of these two disciplines within the law not only are allowed to complement each other, they bring out the best in each other and their practitioners.  The result is a synergy in which the sum is greater than each of its parts, and the elusive win-win resolution of a dispute.

The two authors know this to be true not only in theory, but also because they experienced this outstanding result in a collaborative case.  The proof is found in the outcome of a breakup, and resulting successful re-structuring, of a closely-held corporation of four partners.  Paul Faxon, a commercial transactional attorney, represented three majority shareholder partners, and Michael Zeytoonian, a litigator, represented the minority shareholder partner.  The two collaborative lawyers discovered that each of their respective perspectives brought different insights into the collaborative process, feeding off each other and providing the necessary elements to complete the resolution of the dispute in a way that met the needs of all parties.

Read more

U.S. Corporations Should Implement In-House Mediation Programs Into Their Business Plans To Resolve Disputes

We decided that we wanted to regain control of our money, of our documents, of our reputation and of our time,” said Andrew Byers, overseer of The Toro Company’s mediation program, regarding why The Toro Company of Bloomington, MN implemented a mediation program to settle their in-house and customer disputes as an alternative to litigation. [1]

According to professional mediator Michael Roberts:

“We are in the midst of a litigation crisis. The high cost and long delays associated with the trial of civil matters often make litigation an impractical method of resolving disputes. It is not uncommon for the attorney’s fees, expert witness fees, jury fees, court reporter fees and other related costs to exceed the amount in dispute. Parties increasingly find that they are spending more to litigate than the cost to settle the matter. The increasing number of lawsuits filed each year is indicative of the unwillingness or inability of parties and their attorneys to effectively utilize negotiation to resolve disputes. Because the current legal environment discourages the early settlement of disputes, society is demanding a new approach for resolving disputes more efficiently. That new approach is mediation.”

This article discusses why today’s American businesses and corporations should practice alternative dispute resolution by implementing mediation-approach programs into their business plans to settle customer, employee and contractual disputes in order to save money and resources beyond dollars rather than immediately resorting to traditional litigation. In-house ADR programs and policies, specifically mediation, enhance corporations’ business relationships, save valuable time, and offer significant cost savings in comparison to traditional litigation.

Read more

Using Mediation to Resolve Disputes Between U.S. Military Bases and Foreign Hosts: A Case Study in Japan

The U.S. military presence in Japan has provided great stability in a region of uncertainty. In recent years, the importance of the U.S. military in Asia has been underscored by continuing volatility in North Korea, the growth of terrorist organizations and pirates, and expanded human trafficking.[1] A continued relationship between the Japanese and the U.S. military is vital to regional stability, the protection of maritime commerce routes, and the countering of proliferation of weapons of mass destruction, terrorism, piracy, and human trafficking.[2]

In the last thirty years, relations between local Japanese communities and the U.S. military have been strained, largely due to incidents occurring in the local communities involving off-duty military personnel. According to one source, over 4700 crimes have been committed in Japan by U.S. military personnel since 1972, causing extensive anti-American sentiment throughout the country.[3] The conflicts between U.S. military bases and local Japanese communities have found resolution at the highest levels of government. In the process, the interests of several parties have been lost. Perhaps a new method of dispute resolution should be considered: namely, mediation.

Read more

Junctions Along the ADR Spectrum

As ADR practitioners get out and educate the public about the various alternative dispute resolution processes, we frequently hear some of the same questions asked. People want to know the differences between this approach and that one, between what I do and what other lawyers do, between facilitative and evaluative mediation styles.  In order to best help our clients, we need to be able to successfully and clearly answer their questions.

What’s the difference between arbitration and mediation?

What is the difference between mediation and collaborative law? What does a case evaluator do differently from a mediator?

Where does the word “ombuds” come from, and how is an ombuds different from a human resources person?

How is mediation used as part of the collaborative process different from mediation that takes place in litigation?

Is arbitration all that different from litigation?

If we as ADR practitioners educate the public about the tremendous untapped resources available to them within the ADR spectrum, and engage in ongoing discussion with our potential clients about the value of ADR and the differences between approaches, we will be more successful in educating end users and referral sources about our respective services.  And we will achieve greater buy-in and use of our ADR services by the public.

Read more