There is a recurring question that arises in the dispute resolution (DR or ADR) community’s regular practice of taking stock, seeing how we can best provide our services and how to educate the public on these options available for resolving disputes:
If it makes so much sense to utilize DR approaches like early mediation, collaborative law, or ombuds services, why aren’t more people choosing these processes rather than engaging in the adversarial, expensive, prolonged, painful and often damaging alternative of litigation?
In his thought-provoking book, Beyond Neutrality, Bernard Mayer, a leading DR professional, asks the same question: If these dispute resolution approaches are so good and work so well, why aren’t more people choosing them?
One reason for not choosing these faster, less expensive and less damaging DR processes is that people are not aware of how well some of these processes fit many dispute situations. DR professionals encourage people in disputes to first do an assessment of their dispute situation before they choose a lawyer and a course of action, to help ensure that people use the right DR process for their situation. This is really solid advice as a first step before hiring anyone. Unfortunately, most people skip this step and opt for litigation before they have thought about their options and whether litigation is right for their case. This failure to assess their situation is a major factor in why people choose to litigate, or why DR or ADR processes are not being chosen as much as they should be used.
Mayer focuses on another reason for the disconnect and poses a challenging question: Should DR professionals be focused on conflict resolution only or embrace the broader scope of conflict engagement? At the point that someone is hiring a lawyer or considering neutrals, he or she may still want to or need to stay engaged in the dispute, and is not thinking about resolving it — at least not yet. Some people aren’t yet emotionally ready for resolution or even negotiating, and that will impact their choice of who they hire or what course they take. Their focus at this early stage is likely on winning, achieving justice or fairness, getting their “day in court,” having their say, being heard by the other side, and so on, but not yet on resolving the dispute. Litigation offers them the opportunity to continue the fight. It responds to their emotional need to stay engaged in the conflict. The other processes of DR, Mayer suggests, may be jumping too quickly to the goal of resolution and negotiating toward a solution, when those involved in the conflict are not yet ready for that and are not yet even thinking about that. They are still in “crisis mode,” as Israeli lawyer Michal Kaempfer pointed out in her recent presentation during the Massachusetts Bar Association Dispute Resolution Section’s annual DR Symposium in May in Boston. They have not moved into “problem-solving mode.” It may be destructive, damaging to relationships, expensive and time consuming, but litigation gives the parties that are not yet ready to negotiate a vehicle that responds to their emotional need to continue to engage in the conflict.
Unlike traditional-style (post-discovery/pre-trial) late mediation, collaborative law (CL) can provide a vehicle for productively engaging in the dispute as long as it is necessary. The CL process provides a vehicle for continuing the conflict but requires that the engagement be done through collaboration, working through the conflict together as is needed, rather than fighting to see who wins at trial or outlasts the other in brinkmanship. The CL process doesn’t necessarily move the parties right into considering options for resolution. In fact, by design, it doesn’t and shouldn’t get to the consideration of options for resolution until it has fully explored all the interests and needs of the parties. These needs may very well include the need to continue to engage in the conflict.
It may sound inconsistent at first glance, but it is very possible to collaborate with the party with whom one is engaged in conflict. If we consider conflict as a natural part of relationships, then working through the conflict within the structure of a collaboration is a part of that relationship’s continuum. The parties may need to continue to disagree, challenge each other and advocate for their interests, but can do so in a way that is consistent with the rules of engagement of CL — honoring the principles of civility, trust and respect for every person involved, and committing to stay in the sandbox and not leave or threaten to leave. There is an established term for this wonderful principle — respectfully disagreeing — and it is a form of communicating (and collaborating) that we would do well to revive and restore everywhere, in the halls of government, schools, the workplace, families, religious communities, community and civic organizations, and the legal profession.
CL can provide a vehicle for continuing to engage in the dispute as long as it is necessary and in ways that are productive and don’t restrict our efforts. CL gives us a vehicle to use and a structure that protects the parties, so that we don’t necessarily or unconsciously bypass the continuing conflict and go right to resolution. Mayer recognizes that DR professionals have a bias toward problem solving and resolving matters that may pull us to skip over any further conflict engagement that may be necessary for “Getting to [a better] Yes.” Mayer encourages neutrals and DR practitioners not to limit ourselves to only the pursuit of resolution, going as far as to suggest that we change our role from that of conflict resolution professionals to conflict engagement professionals. “Conflict engagement is not committed to any one function (like resolution), but implies helping people accomplish whichever of these tasks they are struggling with,” says Mayer. “If we embrace the whole trajectory and the multiplicity of ways in which we can assist people throughout the course of conflict, we can begin to think of ourselves as conflict specialists, and think of our task as helping people to engage in conflict powerfully and wisely. Engaging in conflict is our consistent and overriding purpose.”
Both litigation and collaborative law offer parties in a conflict a vehicle for engaging in the conflict until they reach the point where they are ready to consider options for resolving the matter. One key difference is that in CL, the parties decide how they will get to resolution and what that resolution will be, while in litigation, that decision is made by someone else. Another key distinction is that in litigation, because resolution is a byproduct and not the intended goal (winning at trial), and because it is adversarial, by the time the parties get to resolution, many of those options for resolution have become casualties of the litigation and are no longer available. CL not only keeps those options still intact, but works to expand the options for resolution, which is its intended goal (reaching the best resolution).
Years ago, when I shared with a fellow litigator colleague and friend of mine that I was considering shifting my approach in my employment and business law practice from litigation to collaborative law and mediation, his response was that they will never catch on because, “Those approaches are so un-American.” He may have been right, practically or monetarily speaking.
But I think about the principles that collaborative law is built on: trust, civility, respectful advocacy, minimal civil procedural restraint, open and transparent exchange of all relevant information, giving parties their voice and providing a forum for all to be heard, productive use of independent neutral experts, a working collaboration of all involved, self-determination in both process and ultimate decision-making for resolution, and creative problem solving. And I ask: What could be more American? Beyond that, isn’t CL an honorable reflection of human evolution when it comes to how we engage in and resolve conflict?
Michael Zeytoonian is the owner and principal of Dispute Resolution Counsel LLC in Wakefield. He is a lawyer and mediator focusing on employment and business disputes. Zeytoonian writes and lectures at law schools and conferences on collaborative law, mediation and alternative dispute resolution (ADR) and has trained lawyers and presented on collaborative law throughout the United States, Canada, Ireland and Holland. He is co-author of Collaborative Law: Practice and Procedures (MCLE, Boston 2014).