Thinking About Using Mediation to Resolve Your Employment Dispute Without Going Through Litigation First?
One of the things we would find out very quickly through an employment litigation assessment was whether both sides were open, willing and able to exchange all relevant information in good faith about the facts in dispute right away.
The Time for Dispute Resolution Alternatives (DRA) has come
There was a time, not long ago, when those who found themselves in a dispute had two basic choices: They could either file a lawsuit/initiate some formal complaint process or they could just walk away from the conflict and try to move on.
Is an Adversarial Process Our Best and Highest Good? The Case for Early Mediation
Disputes are a part of life. On all levels, in most relationships, we disagree about things.
Family Business Succession: The Joys and Challenges
Family business succession can be joyous when there is a succession plan. But when there’s no plan in place, it can be anything but joyous.
How Will the Way We Resolve Our Workplace and Family Business Disputes Impact our Thanksgiving Meal?
The opposition in disputes is not “the other side”, because I don’t see a workplace in terms of having two sides – employees vs. employers.
What is Your Goal? Winning or Fixing?
What do you want? It’s a pretty simple question, really.
If You Want Your “Day in Court”, Don’t Go to Court
“I want my day in court.” This is one of the most frequent desires and sentiments expressed by a new client in our initial conversation about their legal dispute.
The Case for Early Mediation; Part II of II
In this post, we look at the kind of mediation we are proponents of – early mediation (we call ours “3-D Mediation”) – used either as an alternative to litigation entirely or used very early in the litigation process.
The Case for Early Mediation; Part I of II
Before we talk about mediation and the value of early mediation, let’s start with two key questions to ask yourself about your dispute.
Resolving a Dispute is like Traveling…
Resolving a Dispute is Like Traveling, Writing a Business Plan, or Choosing a Course of Medical Treatment:
If you take the wrong road, you won’t get the result you want.
Navajo Dispute Resolution, Trump’s Tweets and the Lessons of Little Big Horn
I recently read a Daily Good story about Navajo Indian peacemaking, a seven-step process focused on restoring relationships, a notion the Navajo refer to as “K’e”.
Beyond Arbitration and Mediation: Designing the Dispute Resolution Process to Fit the Situation
We live in a specialized world, one in which access to information is so overwhelming that there literally is “an app for that” to satisfy even the most specific and narrow of needs.
Replacing the “Blame Game” with Something Better
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
Getting your day in court – what does it really mean? And how can we get it for you?
“I want my day in court.” “I was wronged and something’s got to be done about it. We need to fix this.”
Let’s Cross-examine the Case Before We Decide to File that Lawsuit
I think it’s a good idea for people who find themselves in a dispute to do some cross-examining before they file a lawsuit.
Do You Have Your Primary Care Lawyer?
Most people have a primary care physician. But people and small businesses don’t often have a primary care lawyer.
Tom Brady: “We have all lost”
Patriots’ quarterback Tom Brady’s sentiments about the ordeal of “Deflategate”, a story and a litigation that needlessly lingered around for seven months, reflects Abraham Lincoln’s sentiments over 150 years ago.
So What is a Meitheal Anyway?
The Fall issue of The Collaborative Review (Vol. 15, Issue 2), has just been published and features an article by Michael Zeytoonian, Director of Dispute Resolution Counsel, LLC in Wellesley and Westborough, MA about the essence of Collaborative Law. The article is entitled “What Makes Collaborative Law Collaborative Law (really)?”
Some Food for Thought Over Labor Day Weekend
Over 95% of the cases filed in courts end up settling and never go to trial. If you know there is an overwhelming likelihood that your case will settle through negotiations or mediation – doesn’t it make sense to use a process designed to reach a settlement in a time and cost effective way?
Transforming Disputes into Transactions via Collaborative Law
When I work with people to help them resolve their disputes, I often find that they are very preoccupied with finding fault and placing blame for what has happened to trigger the dispute. We spend a lot of our energies, time and emotion – clients and lawyers alike – looking backward at what happened and seeing who we can hold liable.
Legal Informed Consent Includes Knowing Your Legal Process Options
"An educated consumer is our best consumer." That was the memorable tagline for Syms, a successful men’s clothing retail store in the New York area years ago. It struck a chord for many reasons. A business that wants its customers to be educated on its products or services reflects honesty, transparency and a shared desire for quality and value. It respects and compliments the customers. It implies that the business wants its customers to be intelligent, do their homework, research and due diligence before coming into the store or office and doing business together.
Why Taking the High Road to Deflate “Deflategate” is Important
It’s the most talked about dispute in New England and in sports these days. Deflategate. But really, how important is this issue? Whether the league rule was violated and footballs were intentionally deflated to a weight less than the range allowed. On a scale of 1 to 10, 10 being most important, this topic is a 1, if that. Ask anyone who ever played football, at any level.
Courts are Limited When it Comes to Problem Solving
Recently I represented a party in a dispute over some business equipment. This case would have been better resolved by the parties either directly communicating with each other or communicating and negotiating with each other through their lawyers. But before that could be done, one party opted to file a complaint in federal court and as a result, we were engaged in court proceedings.
Is This the Best Dispute Resolution We Can Do?
I suppose somewhere, some group celebrated the “win” of recapturing Syrian cities as a strategic victory. The problem was that there was nothing left to recapture. Whatever had once been there was gone. The people were either dead, injured or gone. There was no other movement.
Why Our Practice Areas Include Special Education Cases
There is a personal reason and a law practice philosophy reason why we represent clients – parents and families of special education children – in disputes involving special education matters and include this area of practice in our services.
How You Go About Resolving Your Dispute Is Up To You
One point we want to drive home with clients in this series about tiered dispute resolution clauses is that parties have the right and the need to find the right process choice. Not only do parties have options, but with good, creative advice from their lawyers, they can sometimes design the process so that it is tailored to their needs, bandwidth and the circumstances of the specific dispute.
What is a “Tiered Dispute Resolution Clause” and What Options Does it have to Offer?
Tiered dispute resolution clauses in contracts -- this is the first step in providing clients with alternatives to court and litigation. It gives parties value in three ways: (1) It gives them the opportunity to work together on how they will resolve a dispute; (2) it allows lawyers to educate their clients on what their options are, how they work and what their pros and cons are while the parties are calm and agreeable; and (3) it gives the parties more control over the process as well as the outcome.
The Case for Dispute Resolution Clauses in Contracts
I am fortunate enough to have some great clients. They do their jobs well, they run their businesses and organizations well. Because they do things right, I have less “back end” (reactive) work from them because they don’t get many claims against them. That is partly because we work together on the “front end” (proactive) work of anticipating issues before they arise and preventively address them.
Lessons from Jerusalem, Part II: The trouble with false assumptions
I wanted to continue the theme from my last Blog post about the Sea of Galilee and the notion of “being a Galilee” a bit with this blog post. This article discusses what I learned over this trip and the trouble with false assumptions.
Lessons from Jerusalem: What Attitude Do We Bring to our Conflicts?
Strange as this might sound, I had the good fortune of being in Israel during a war, a declared cease fire and its aftermath, and experiencing how these impacted the people involved. While it was a source of some tension and heightened vigilance, it provided a rare opportunity to experience the shifts and changes that occur when a war stops and a cease fire is in effect, in this place that has been a historical hotbed for conflict.
Dispute Resolution Options
Most people think that when they get into a legal dispute, they have to file a lawsuit. They retain a lawyer, often a litigator, and start an expensive, time-consuming process called litigation. “I’ll sue.” “I’ll take you to court.” It’s what we are taught and reared on, what we see in movies and on TV and what people talk about here in America, the world’s most litigious society. - See more at: http://www.disputeresolutioncounsel.com/2014/05/dispute-resolution-options/#sthash.IQ6GFRXc.dpuf
Collaborative Law in Civil Disputes and Basketball’s Triangle Offense
For basketball junkies like me, there was a great article in the Fall, 2013 issue of Good magazine about the Triangle Offense. This system was used by Phil Jackson and Tex Winter to redirect the talents of superstar players to work within a system with others team members without restricting their natural abilities. The similarities between using the Triangle Offense and using Collaborative Law to resolve disputes are striking.
3 Misconceptions About Using Collaborative Law in Employment Disputes
Over 2013, we heard a few reasons from employers and companies for why they would forego using Collaborative Law – a much more efficient dispute resolution process than litigation – and opt for litigation or arbitration instead.
If You and Your Lawyer Really Do Want to Negotiate…
In every dispute a client calls me in to work to resolve, my first inquiry with the other side is to discuss the possibility of early resolution. If we can explore this option even before any litigation has been initiated, it’s even better.
Do Our Words Send the Message We Want to Convey to Accomplish What We Want?
How often have we said or written something and quickly or soon realized that the message the recipient got was not what we wanted to convey? In the e-communications world, it happens all the time.
Legal Disputes are Parts of Something Greater
What if we began to see disputes as a small part of something bigger? If we viewed them as a point along a spectrum with a greater continuum? If we placed the dispute within the context of one or more larger relationships?
So What is this Different Kind of Legal Advocacy?
There is a special niche in the legal profession for the role of focused representation, serving clients as settlement counsel or collaborative counsel. As clients demand better value in legal services and as lawyers are driven to develop better ways to serve their clients, this new niche will continue to grow.
So Who is Your Primary Care Legal Counsel?
In our last blog, we suggested that people approach resolving legal disputes the way they approach making medical decisions. The starting point is to have a “primary care lawyer”, a true legal counselor, just as we have a primary care physician.
To Resolve a Dispute, the First Step is to Assess Your Options
I’ve heard people who are in a business or employment dispute often lament: “I’m stuck in this dispute, and now we’ll have to litigate; I have no options.” If you take nothing else from this post, know this: They are usually wrong about this.
Replacing the “Blame Game” with a “New Game Plan”
Two recent Boston Globe stories (2 21 13) stood out for their common theme – that of laying blame and finding fault. One article entitled “Not Without Blame” apportioned blame for what happened to the 2012 Red Sox. The other story was about the latest fiscal battle between House Republicans and President Obama. The article discussed the need to lay blame on the other side for the looming “sequester”, a default measure making automatic spending cuts if the powers that be in Washington, D.C. can’t come up with mutually acceptable solutions.
What if We Took Losing Out of Dispute Resolution?
I was recently on Good Harbor Beach in Gloucester, MA relaxing and journal writing. I noticed two women hitting a volleyball back and forth in a small box on the sand. In the aftermath of gold and silver medals for U.S. women’s beach volleyball at the London Olympics, these two women played a one on one version, with one big difference.
Two Different Mediators – Moses and Jesus – and the Place of One
Where is the place where the giver of the law and the recipient of the law are joined? The place of synergy where both sides become one solution?
So What Does Identity Theft Have to do with Dispute Resolution?
Early on in the movie, Field of Dreams, Ray Kinsella’s wife Annie asks him a key question as she tries to understand why her husband got sidetracked on their favorite writer, Terrence Mann, when his mission is to figure out why a voice told him to build a baseball field.
One Key Difference Between Mediation and Collaborative Law is Often Overlooked
As a mediator and a collaborative lawyer, I often get asked: “What is the difference between mediation and collaborative law (“CL”)?” It’s hard for parties in a dispute and other non-lawyers to see the differences; in fact lawyers have trouble articulating them.
We Hear the Other Side’s Words, But How Well are we Really Listening?
Over the last month or so, I’ve been struck by several situations in which one party to a conversation or discussion obviously was listening to what was being said, but it was equally obvious that the listener wasn’t really hearing what was being said. I have a couple of theories for why, but it’s often because somewhere early on in the exercise of hearing, the listening party stops listening and starts formulating his response in his mind.
Collaborative Law: High Energy, Out of the Box Legal Creativity
The largest annual gathering of Collaborative lawyers and professionals just took place in San Francisco from October 27-30, as the International Academy of Collaborative Professionals (IACP) held its 12th annual Forum. As always, this Forum was an amazing event, four days of insightful, profound and transformative thought in the legal profession.
Is It, Or Are We, Really That Important?
The other day I was in the men’s bathroom. I couldn’t help but notice that the guy standing next to me was holding up his phone and texting someone. On another occasion I had seen the same guy in the bathroom holding up and reading a document while standing there.
How We View Information Exchange is at the Core of Efficient Dispute Resolution
Last blog post (Why aren’t more people using CL?), we noted that people in disputes often overlook a very important consideration: how information is exchanged. It is one of three critical questions when it comes to resolving disputes.
Why Don’t More People Use Collaborative Law?
Lately some of us lawyers who use Collaborative Law (“CL”) in civil disputes other than divorce cases have been brainstorming about the expanded use of CL in employment, business, probate, construction and other areas of law. In the spirit of transparency that is an important element of CL, we’ve focused on why more people don’t use CL to resolve their business or employment or other civil disputes.
Ask your lawyer for “PDR” and help make the “Alternative” the “Primary”
The more important thing that has happened is that clients have become more savvy and technology has changed the speed and availability of information.
Have You Checked Your Assumptions, Lately?
Advocacy and the Pursuit of Interests, Without the Fighting
A dispute was swirling around a man and his followers who were promoting an alternative way of living, different from the norms of their time. The man had just been betrayed by one of his insiders and the dispute was about to come to a head.
We Are Looking for One Good Town
What if your entire town made an official commitment to practicing legal wellness, for one year? Or for that matter, your entire company? Or your mission-based organization? Or your family?
Compliance More Likely if Cases are Mediated
Does the way a dispute gets resolved – either through a negotiated out of court settlement process or through a verdict or finding of a court — impact the level of compliance with the terms of the resolution? Put differently, are people more or less likely to carry out the terms of the final resolution when it is the result of a process like mediation or collaborative law or other non-adversarial processes?
Mediation Breaks into TV and Shows its Advantages Over Litigation
It’s great that there are now two new shows which focus on mediation as an alternative to the court process. One is Fairly Legal (Thursday at 10 pm EST on USA Network); the other is Harry’s Law (Mondays at 10 pm EST on NBC). This post discusses them in greater depth.
Another Situation Calling For Collaborative Law
Last week, while working essentially in a role of settlement counsel in a business transaction dispute, I came across another situation that highlighted the value of using Collaborative Law (“CL”). Unfortunately, this case was already in litigation, and has already crossed state lines via a change of venue motion which was granted.
Why Be Proactive In Our Treatment Of Employees?
Workplace bullying and harassment are emerging issues to be addressed by employers. Add the potentially larger problem of increased stress, decreased morale and diminished productivity of those employees who remain after layoffs, who are expected to carry the same load with less people, less experiential knowledge and less resources. Factor in a still sluggish economy and high unemployment, and we have a workplace perfect storm and a cresting wave of workplace discontent.
Time for a Proactive Dialogue on the Health of the Workplace
Much of my work in preventive law and dispute resolution involves workplace situations and disputes. I have many great business and non-profit clients and many individual clients who are employees. I’ve never liked the idea of being pigeonholed as an “employer’s or management side” or “employee’s side” lawyer any more than I wanted to be labeled a plaintiff’s attorney or defense attorney. Representing both sides has helped me counsel clients better as I understand the perspectives of both sides, along with the views of the other “stakeholders” in workplace issues – families, communities, subcontractors, lawmakers and the consumers of the business products and services involved in the dispute.
IDR Or All-Star Baseball Arbitration: Complete IDR Or Civil Collaborative Law
To respond to clients’ needs for a better fitting dispute resolution process than some of the established methods, we created a very fluid and flexible Integrated Dispute Resolution (IDR) process earlier this year. IDR allows us to tailor the process to the specific circumstances of each dispute and integrate the right elements from other processes like case evaluation, the use of coaches, consultants and neutral experts, to give the parties what they need for the best resolution.
Baseball Arbitration Belongs Here – Let The Games Begin, And The Disputes End!
ve been looking at baseball arbitration lately to consider including it in the dispute resolution services we offer at the Zeytoonian Center. Upon further review, it should be added to our DR spectrum. It is a great complement as an option for closure in some of the other processes, like IDR and civil Collaborative Law.