Ask your lawyer for “PDR” and help make the “Alternative” the “Primary”

From Michael Zeytoonian’s Dispute Settlement Counsel Blog

Part 1 of 2 parts on PDR

In the language of the people, what we do at the Zeytoonian Center is work with people to resolve their disputes without going to court and without engaging in a process known as litigation. We use different approaches like mediation, collaborative law, conciliation, case evaluation and our own Integrated Dispute Resolution (“IDR”) to help people solve their problem and we tailor that approach to the specific situation and circumstances of the people in that particular dispute.

In our materials and writings and presentations we make, you’ll hear three different acronyms thrown around: “ADR”, “IDR” and a new one that we are going to start using now which will take the place of ADR, “PDR”. Lay people get annoyed when lawyers talk in legal jargon, and rightly so, so I want to use these next two blog posts to explain what each one is, what each one means, and then ask you to join us in changing their meaning to reflect your interests and replace ADR with PDR. We’ll explain what PDR is in the next blog. We’ll save IDR for another blog post.

ADR stands for alternative dispute resolution. ADR has included processes like mediation, arbitration, collaborative law, conciliation, etc. Historically, lawyers have viewed ADR as the alternative to litigation. As such, litigation has been the process of choice for lawyers. In some instances, usually because it’s stated in the terms of a contract, businesses will use arbitration instead of the courts.

ADR has been, up until recently, mostly thought of and used during and as a part of the litigation process, and not really as an alternative to litigation. Typically, toward the end of a case that has been filed in court, after all the discovery process has been completed and just before going to trial, the lawyers and the parties will discuss and usually opt for mediation to avoid the risks of an unpredictable trial and the costs of trying a case.

Statistics bear this out: Approximately 98% of the cases filed with the courts settle and do not go to trial.

But a few things have changed the legal landscape when it comes to dispute resolution. One is that arbitration, once seen as a less expensive and quicker alternative to court, has become a lot like the court process, including much of what court-based litigation includes and as a result has gotten longer and more expensive. The upside to arbitration is that the parties get to pick the decision-maker. The downside is that the parties have to pay for the arbitrator vs. the $300 filing fee for court intervention, binding arbitration is not appealable and the parties are not the decision makers.

So in many ways, arbitration has lost its shine. That, coupled with the fact that in arbitration, the parties give up the decision making to a third party, is why we don’t offer arbitration as a part of our services. We believe that the parties in a dispute should make the decisions as to what process to use and how the matter gets decided. This is a very American idea: self-determination; or as we call it, the sovereignty of the client.

The more important thing that has happened is that clients have become more savvy and technology has changed the speed and availability of information. That, coupled with the economic climate that has led clients to more carefully watch what they spend and tighten that spending, has led clients to seek more efficient, faster and less expensive means of resolving their disputes. Processes like mediation, when it is done early on in the dispute, and Collaborative Law, both of which avoid court completely, are becoming more in demand.

So what is PDR? To be continued in the next blog…

                        author

Michael A. Zeytoonian

Michael A. Zeytoonian is the Founding Member and Director of Dispute Resolution Counsel, LLC and is a lawyer, mediator and ombudsman. He is formerly a partner and now Of Counsel at Hutchings, Barsamian, Mandelcorn & Zeytoonian, LLP, in Wellesley Hills, MA. He specializes in employment law, business law, special education… MORE >

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