Dispute Settlement Counsel by Michael Zeytoonian.
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.
We know that CL is an efficient and agile process and is ideal for many disputes, especially those in which preserving relationships is important. We also know that it is not the best process for every dispute. For some cases, mediation may be better; for others arbitration and for still others, litigation. For many disputes, often a hybrid approach works best, which may utilize some of the principles and techniques of CL, but not all of the elements of the widely accepted CL process model.
We also know that many people, perhaps you as you read this, are not familiar with CL, how it works and why it is an excellent approach to resolving disputes. There is a huge public education challenge whenever something new is introduced, until either there is a highly publicized use and success story, or until it gradually works its way toward that “tipping point”, after which it has the all important momentum and critical mass. This is especially true of a profession like law, which is slow to adapt and change.
Since one of the desired features of the CL process is that it is confidential and private, you won’t read about many successes. But if you happen to be talking to someone who resolved their discrimination or business partnership or contract dispute over this summer without going to court or very early on in the process, they will tell you that in their cases, they resolved in a better way that litigating.
What are the key ingredients to getting a case resolved efficiently? First is the desire by the parties involved to focus on resolution by intention and design and not go to court. Once that has been decided by the parties, the next step is to design together a process that works best for them. This might include elements of CL like early, voluntary and full sharing of all relevant information, or the use of a shared neutral expert, paid for equally by the parties. Or it might include the use of a mediator with a certain style or approach which is a good fit for the case. Sometimes parties and lawyers need a mediator who primarily facilitates the dispute resolution. Other times the situation calls for a mediator that can provide useful case evaluation feedback to the parties to help them adjust their assumptions about the strengths and weaknesses of their case or what their case is worth.
The second ingredient is one that most people overlook because they incorrectly feel they have no choices. This often unasked question opens the door: How quickly do you need the matter resolved? If speed and efficiency are important to parties in a dispute (i.e. resolved in less than 6 months), you should not be considering litigation. Mediation and CL are designed for efficiency. Arbitration used to be efficient and still can be, but it has become more and more like litigation, only without the court system. Civil procedure and some administrative procedures are not designed for speed and efficiency. FYI, one administrative process that is really well designed and efficient is the process used for Special Education cases, but that is the topic of an upcoming blog post.
This third ingredient is the determination of how to structure and manage the sharing or exchange of all relevant information (referred to in litigation as “discovery”) so we can quickly and intelligently develop options for resolution. Simply put, discovery is what makes litigation take so long. In today’s business and employment litigation, the heavy cost of electronic discovery often mirrors the cost of legal fees.
This third factor – information exchange – is important and needs its own blog post. It will be the focus on my next blog post.