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.
In branding, marketing, and promoting our services, focusing on differences is important. But once the marketing part is done, strategies are chosen, and we get down to the work of resolving disputes, there is no value in harping on the differences or involving ourselves in a game of competition or one-upmanship. Each type of ADR process, and the hybrids that are developing among them, has value when utilized at the right time, in the right situation, with the right combination of talented and trained personnel.
As we work within the ADR processes and within our community of ADR practitioners, we can recognize and focus on the synergies between us, the crossover among our various approaches, the hybrids we can create, and the opportunities for integration. We can and should embrace the interwoven threads among our areas of focus and celebrate our similarities in philosophy and approach. We are allies here, dedicated to a cause of “transforming the way conflict is resolved,” as the international collaborative law community proclaims (see www.collaborativepractice.com).
Let’s look at a few of these examples and see how working with these synergies is beneficial and can become quite natural.
Mediation and Collaborative Law
I’ve often thought that the model most likely to achieve the deepest and most thorough resolution is collaborative mediation, in which the parties are represented by collaborative lawyers and the process is facilitated by a neutral mediator. Both the mediator and the lawyers in this process grasp the need to stay transparent and interest-based; the mediator can facilitate more freely knowing that both parties are represented by counsel and that both attorneys are on the same page as the mediator as they work to expand the pie and develop options for resolution. Together, they work to shift the focus from “winning” in a positional, zero-sum game to collaboratively identifying interests, solving problems and creating solutions.
In civil collaborative law cases, we are beginning to see something similar to collaborative mediation. Growing numbers of parties use a collaborative consultant or monitor who serves as an independent consultant assisting the parties and lawyers in keeping the collaborative process on track and facilitating when the parties run into roadblocks. The collaborative consultant is not facilitating the developing of options and resolution as much as he or she is helping to preserve the integrity of the process. It actually is similar to the role of…
Circle Process and Ombuds Services
…a Keeper in the Circle Process used in restorative justice cases, who maintains the integrity and smooth functioning of the Circle. The Circle Process is a valuable tool used as a key stepping stone for communicating, understanding, acknowledging, and reaching deeper resolution. The Keeper’s role, as defined by Kay Pranis in The Little Book of Circle Process, “is to initiate a space that is respectful and safe, and engage participants in sharing responsibility for the shared space and their shared work.” (This may sound familiar to collaborative lawyers.) Circle Process is a valuable vehicle that could be used as part of a mediation or a collaborative case. It also might be utilized by…
Ombuds Services and Civil Collaborative Law
…an Ombudsperson, as part of the ombuds’ neutral and impartial interactions with parties to address and diffuse situations before they rise to the level of disputes. The ombuds gives the parties value when he recognizes that the situation calls for an opportunity for people to better understand each other and be heard in a safe environment. Faced with a dispute situation, an ombuds might recommend the use of a Circle Process and a Keeper. An ombuds could also recommend a process that offers that same type of “container of safety and trust” to work within, Collaborative Law. And within that process, …
Mediation and Collaboratively-Trained Neutral Experts
…during one of the Collaborative four-way meetings, it may become evident that a certain type of expert or consultant is needed to provide some useful information that would help both parties better develop options. Experts may include a financial advisor or an economist to help with some necessary projections or analysis, a CPA to value a business or other asset, or a diversity expert to help in a discrimination dispute. It’s not uncommon within a collaborative case or mediation for one or both parties to lack a good handle on the value or strength of their case, and the “shadow of the law” looms, perhaps eroding a party’s commitment to the collaborative process or the mediation. It might be helpful to the process to clarify the BATNA of one or both of the parties, so they agree to bring in…
Case Evaluation and Mediation
…a Case Evaluator, to give them a bit of a reality check and offer some advice as to the strengths and weaknesses of the claims. A neutral case evaluator, working within a mediation or a collaborative case and providing helpful information and analysis, will almost always provide a strong nudge to the parties to continue the interest-based process . A mediator can be called upon to provide some case evaluation, or a case evaluator can seamlessly slide into a mediator’s role when helpful to bring the parties to a good resolution. On the other hand, if it seems that the interest-based approach is not going to result in a settlement, some civil collaborative process agreements include the option of a cooling off period, followed by …
Civil Collaborative Law and Arbitration
…the use of an arbitrator. An arbitrator may be appropriate if the parties, after making their best effort at either collaborative law or mediation, cannot fully resolve the dispute and need a third party to decide the issue or matter for them. Some proactive employment, contract, and transactional lawyers have begun to advise their clients to include a tiered ADR provision in the dispute resolution clauses of their employment agreements, partnership agreements, and other business contracts. Discussing dispute resolution during contract formulation also gives lawyer a good opportunity to educate his or her clients about the various types of ADR open to them long before they find themselves engaged in a dispute. This also allows the lawyer to lay the informational groundwork for making sure that the client’s choice of ADR approach is done with the true informed consent of the client.
So, as the Circle Process recognizes, there is a connection among all types of ADR practitioners, and while each of us in the ADR community has different tools in the toolbox, there is great opportunity and potential for synergy, crossover, and creating effective hybrids within our approaches.
Michael Zeytoonian is the founding member of the Zeytoonian Center for Dispute Resolution, LLC, in Wellesley Hills and Westborough, MA. He is a mediator, civil collaborative lawyer and ombudsman.
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