Dispute Settlement Counsel by Michael Zeytoonian.
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.
My friend Liz Ferris, a marketing consultant who works with lawyers around the world, has often given us this simple but often overlooked advice: “If you want to achieve your goal, you have to have one.”
A regular practice of mine when I have a first conversation with potential clients is asking them about their interests and goals. What do they want the result of their dispute to look like? These are two responses I’ve gotten quite frequently from clients:
“You’re the first lawyer I talked to that asked me about my goals.” Or: “I haven’t really thought about what my goals are.”
There are Several Roads to Choose From to Resolve the Dispute
Once your goal is clear, there are several roads to choose from to resolve the dispute. But most people don’t first take the time to learn about and assess their options. Unfortunately, many lawyers don’t educate clients about these different approaches and aren’t trained in these processes. This often results in choosing the wrong process and hiring the wrong kind of lawyer.
When clients skip this step, they reduce the odds of a good resolution by more than 50% before they’ve even started. This is like taking the Mass Pike (I-90) west from Boston to get to Cape Cod! Even if you have a great car, you’re still going the wrong way. It reminds me of the joke about the airplane pilot who makes an announcement to the passengers: “I have good news and bad news. The bad news is that we are lost and have no idea where we are; the good news is we are making great time.”
Learn About the Difference Between Four Common Dispute Resolution Processes
One thing I urge you to do, even if you are not in a dispute right now (you likely will be at some point), is to learn about the difference between four common dispute resolution processes – Litigation, Arbitration, Mediation and Collaborative Law – and when to use each one. Click the button below to download a whitepaper I’ve written on these four common process choices.
Picking the wrong process and the wrong kind of lawyer is like hiring a surgeon when what you need is a few physical therapy sessions. Or taking a highly regarded historian’s course when you need a science lab to meet your science degree credit requirements. It sounds totally illogical. Yet that is exactly what many people do when they hire a lawyer. They hire before they have discussed their goals or assessed the process options.
Two Important Questions to Answer in Life
Years ago when I was working through some personal challenges in my life, I read a book called “Fire in the Belly” by Sam Keen. One piece of advice he offered always stuck in my mind:
There are two very important questions to answer in life: Where are we going? Who are we going with? The problem, Mr. Keen suggested, is that most people answer them in the wrong order, choosing who they are going with before they know where they are going.
Let’s apply that to dispute resolution, because people often answer the two questions in the wrong order. Let’s include a third question: What is the best way to reach our destination? People often hire great litigators and start the court process when their dispute calls for early mediation. Or they hire an arbitrator when the situational facts cry out for using Collaborative Law. No matter how good the lawyer is, he/she can’t help as much if he/she doesn’t know what your interests are and doesn’t line you up with the right process for your circumstances.
When I lived in New York in the 1990s, there was a men’s retail clothing store called Syms. I still remember their tagline: “The educated consumer is our best customer.”
Mediation, Collaborative Law, Arbitration and Litigation are four options for getting to a good resolution. There are other ways too; good dispute resolution lawyers sometimes design hybrid processes tailored to meet their clients’ needs. Take time to learn about them and how each one works first, so you can choose the right process.
There are a lot of tools in a toolbox. You wouldn’t pick out a hammer to drive in a screw. Because to a hammer, everything is a nail.