Beyond Arbitration and Mediation: Designing the Dispute Resolution Process to Fit the Situation

zeytoonian_Michaelby Michael Zeytoonian

The Profession

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.

Yet, until recently, the legal profession’s response to the increasingly tailored needs of our clients has been to give them all the tried and true traditions of the law.  Got a dispute?  Let’s file a lawsuit with the courts and travel down the litigation road.  Got a complex, sophisticated business dispute?  Let’s go to arbitration with an arbitrator who is experienced in business disputes.  Don’t want to risk a jury deciding your case and spend thousands of more dollars on a trial?  Let’s go to mediation.  Because…this is how we do it.  This is how we’ve been doing it for decades.

The information revolution has moved too quickly and our clients have become too savvy to be content with the legal profession’s limited amount of choices or one size fits all approach. There is a time and a place for litigation, for arbitration, and for late in the dispute process mediation.  But most of the time, our clients need an approach to resolving their disputes that is tailored to their needs, specific circumstances, and unique situations.  Today’s lawyers and neutrals can best serve our clients by being responsive to the specificity of their needs and interests.  That includes not only resolving a dispute but also how we go about resolving it.

New England Patriots coach Bill Belichick often talks about playing “situational football.”  In other words, the game plan is designed differently for each game and depends on the situation each opposing team presents. The Patriots will never use the same game plan against the Broncos as they used for the Jets just because it worked.  The Patriots win because they understand that a great result begins with a carefully designed and tailored approach.

Every dispute is different.  Every client has a different bandwidth of factors which need to be considered.  These may include how quickly the client needs to resolve the matter; how much can be spent on it; how important are the relationships of those involved; how much control does the client want to have over the process and the result; how risk averse is he/she; how important is confidentiality; what kind of expertise is needed; what are the important interests that are behind a stated position; and how productively can the parties work together in a non-adversarial setting, with or without a human go-between.

If the field of dispute resolution (DR) is going to be relevant, it has to be agile and responsive to the situation that is presented to us.  No longer can litigation be the default and a couple of other processes be “alternatives.”  In fact, no one process can be the default position and be presented to clients as the Cadillac of dispute resolution processes.  It is time for the “A” (alternative) to be dropped from “ADR” (alternative dispute resolution), something that the Massachusetts Bar Association has just formally recognized in changing its former ADR Committee to its new DR Section.  No process is an alternative; rather, every process is an alternative, and there are alternatives within the alternatives.

Within these DR processes, there is an explosion of variations and new roles emerging.  For example, distinctions are often made between “facilitative” style mediation and “evaluative” mediation.  In the latter, the mediator is called upon to help the parties assess how strong or weak their respective positions are, and to provide insight on the potential damages.  A new trend emerging, called Planned Early Negotiation (PEN), draws a distinction between mediation which is done instead of litigation, or very early on in the litigation process, and that which is done later, often on the eve of trial.  When done early, there may be some kind of information exchange so that the parties, lawyers and the mediator have enough factual information for well-informed and productive negotiations.  Conciliation is another DR process with a much shorter time frame – often an hour or two –- and has often been referred to as “mediation on steroids.”  Conciliation largely focuses on the advantages of reaching a negotiated agreement as compared with the pitfalls of the alternative of going to trial.

New approaches have been developing even in the well-established field of arbitration.  Arbitration has increasingly become a more complicated process and often includes many elements of litigation.  As a result, many parties are opting for more streamlined models of arbitration with limits on discovery and motion practice   Some even use a more simplified version like “baseball arbitration,” in which the parties submit their respective written proposals for a settlement to the arbitrator, who then chooses the one he/she believes to be more appropriate and reasonable.  And within baseball arbitration, there is both the version just described, known as “daytime” baseball arbitration, and “nighttime” baseball arbitration, in which the parties submitted proposals are not disclosed to the arbitrator until after the arbitrator renders a decision.  The proposal that is closest to the arbitrator’s decision is then chosen to be the final resolution.    In other cases, arbitrators may visit the site that is at the heart of a dispute and may limit or expand the degree of information exchange, the scope of submissions and the nature of a hearing.

Collaborative law, a structured negotiation process, grew out of the need to remove or minimize the adversarial elements of litigation.  Collaborative law is a PEN process designed to intentionally pursue resolution by agreement through the collaboration of lawyers, clients and experts.  It is similar to the more established role of settlement counsel.  Lawyers that are hired as settlement counsel have the singular and limited purpose of negotiating with the other side on behalf of the client, as distinct from litigation counsel.  A dispute would then proceed on two tracks; settlement counsel would be focused on pursuing settlement negotiations only, while litigation counsel would be handling the litigation aspects of the dispute.

Similar to the role of settlement counsel, the focused legal representation of clients by collaborative lawyers is limited to the collaborative process, where achieving the desired resolution is the lawyer’s only role.  Collaborative law requires the open and voluntary exchange of all relevant information as a basic tenet.  As such, “discovery” is both streamlined and profound.  Collaborative lawyers and their clients may utilize neutral facilitators, case evaluators, or other neutral experts to provide parties with the expertise needed on the relevant factual and legal issues when there is a colorable claim and a valid defense.  By its very nature, collaborative law is responsive to the circumstances of the dispute, allowing for flexibility and creativity in crafting solutions.  That very nature allows collaborative lawyers to use variations while remaining consistent with the process’s basic protocols and principles.

Hybrids like “med-arb” or collaborative law with a baseball arbitration style closure option are also emerging, each with a different adaptation of process.  What is clear is that there is no longer just one model of any of these processes.  They will be called upon to be responsive to the situation each dispute presents.

These changes will require lawyers and neutrals to make more detailed assessments of each situation and the parties involved.  Based on that assessment, we can then make a recommendation as to choosing and sometimes designing the right approach.  This can present somewhat of a dilemma.  Many lawyers and neutrals have a preferred DR process, one that we are more comfortable with, have the most experience in or in which we have been trained.  Just like a surgeon excels at surgery and that is what the surgeon wants to do, litigators want to litigate; arbitrators want to arbitrate; mediators want to mediate; collaborative lawyers want to use collaborative law; and so on.  So when the client comes into our office, there’s a natural bias, as well as a financial incentive, toward wanting to lead the client to what we do.

But if we are true to doing a thorough assessment of the client, his/her situation and all the factors of the dispute that is presented to us, and are going to make a good recommendation about the approach for this unique situation, we may have to refer the person to some other process and someone else that is the right fit for that client.

In the same way that a lawyer specializing in one area of practice would not try to represent the client in an area outside of his/her practice, a lawyer whose focus is settlement counsel or collaborative counsel is probably not the right lawyer for litigation, and vice versa.  As there are specialties in areas of practice, today there are specialties in types of process.  The training and expertise for a litigator is different than that of a settlement counselor, just as the process of collaborative law is different from arbitration.  In her groundbreaking book, The New Lawyer: How Settlement is Transforming the Practice of Law, Law Professor Julie Macfarlane eloquently dissects the differences between adversarial advocacy and the newly emerging “conflict resolution advocacy.”     

There is a role and a place for every kind of process on the DR spectrum, from litigation and arbitration on one end to preventive contract drafting and proactive ombudsman work on the other end.  As the needs and demands of our clients get more specific and more sophisticated, those of us who represent our clients either as litigation, settlement or collaborative counsel, as well as those of us who serve as DR neutrals, must be responsive.  The times call on us to be flexible and agile, to be ready and able to design approaches according to the needs and the situations presented to us.   As legal counsel and neutrals, it is up to us to guide parties in the right direction in order to help them achieve their best outcomes.

Michael A. Zeytoonian, the founding member of Dispute Resolution Counsel, LLC is a lawyer and mediator whose practice areas include employment, business, consumer protection, special education law and homeowner-contractor disputes.  Michael writes, lectures frequently on collaborative law, mediation and dispute resolution (DR) and has trained lawyers and presented on Collaborative Law throughout the United States, Canada, Ireland and The Netherlands.  He is co-author of Collaborative Law: Practice and Procedures (MCLE, Boston 2014).  


Translation

By Judge Rudolph Kass (ret.)

The Profession

Shortly after taking my seat as an associate justice of the Appeals Court, I received a notice of deposition. The subject concerned the competence of a testatrix whose will signing I had witnessed while still in practice. In doubt how a judge should behave in those circumstances, I consulted the then Chief Justice, Allan M. Hale, a bottomless source of pragmatic wisdom. His instructions were: “Go answer the questions and don’t make any rulings.”

I recalled that episode, which involved a degree of behavior modification, when asked by an editor of this journal what, if anything, I had to impart about my translation from appellate judge to mediator and arbitrator. That role change occurred after I reached the constitutionally mandated retirement age for judges.

An appellate judge comes upon a controversy when it has already gone to an advanced state of development: the parties and their counsel have not resolved their differences – if they have even tried; the case has gone to trial; a jury or judge has found the facts; and one side has won. The record is fixed. Except for the rare instance when a losing party challenges the findings of fact (generally a Sisyphean task), the appellate judge engages in analysis to refine the questions in the case and applies the fruits of legal research, life, and professional experience to produce an opinion of what the law is and, by its application, to decide who wins the case. In that effort, the appellate judge has the comfort of collaboration – and sometimes loyal opposition – of the other judges on the court.

The mediator enters upon a dispute in its nascent stage. With rare exceptions, the case has not been tried, and the appellate judge turned mediator is re-introduced to the certainty paradox that characterizes a trial: that the only certainty about a trial is the uncertainty of the result. At the mediation stage facts are still unsettled. This permits the parties enthusiastically to demonize one another – and they generally do.

Mediation theory holds that the role of the mediator is to help the parties size up their vital interests so that those parties reach an accord. Chances are, however, that when counsel for the parties choose a former judge to be their mediator, they want that mediator to voice some judgment about the strength of the parties’ legal positions. There may be a time for that but one quickly learns that at the beginning of the process, the ex-judge mediator, like the judge-deponent, better not make any rulings. The atmosphere is more favorable to settlement if one side may plausibly argue the world is flat and the other that the world is round. Mediation is a search for the mutually unsatisfactory but acceptable resolution – unsatisfactory in the sense that each party will walk from the mediation with less than that to which it thinks itself entitled but can accept upon reflective assessment of the risk of losing the case, the legal expenses even if victorious, and the disruptive wear and tear that litigation imposes. This is not to say that mediation is unprincipled. The relative claims and defenses are grounded in law and those considerations weigh heavily in resolution of the controversy. The legal answer is not the sole answer. In a particular context it may not be a constructive answer and it is wise, as Professor Austin W. Scott was wont to observe when teaching the law of trusts, to rise above principle: for example, when parties reasonably anticipate a course of mutually beneficial commercial relations ahead of them.

In appellate presentations there is a premium on candor on the part of counsel. Judges will give more weight to arguments from lawyers who are playing straight with the court. In mediation there is theater and posturing as parties make offers and counter offers that they do not seriously expect will be accepted. For the translated judge this takes some getting used to and calls upon the patience reserve. One develops a sense when the dance step converts to real negotiation.

In the comparative calm of the appellate process, the emotional state of the combatants is not a factor. The mediator, by contrast, sees emotion – often it is anger – on display and it is very much a factor that the mediator must strive to understand. The mediator’s response is that anger, however justified, is corrosive and obstructs arriving at a solution to the problem that produced the controversy in the first instance. It is fair to ask when confronted with anger and its twin, an immovable position, what did the party come to mediate? Was it not to solve a problem by a method other than a shoot out?

As the mediation reaches the climactic stage, the ex-judge begins to resume aspects of her/his former role. While still not a decision maker, the mediator becomes more directive, appraises legal positions more definitively, describes worst case scenarios and what the mediator thinks are a party’s vital interests. To the extent that parties are stuck in fixed positions, the mediator may suggest elements of a resolution other than an exchange of money. What does the former judge miss at this juncture? Not sitting one foot higher than everybody else in the room.

The former judge is likely to be conscious of the duty of the trial judge managing the case, if it has reached a judge, to keep the case from stalling or moving sideways. It would be presumptuous for a mediator to suggest how a trial judge should manage scheduling issues but if the parties appear to be getting close to settlement, it may be permissible for the mediator, with the consent of the parties, to so report to the trial judge. That said, the confidentiality statute, G.L. c. 233, §23C, which governs mediation, imposes circumspection on any communication between a mediator and a judge. The window in the wall that separates the mediation room from the courtroom is very small.

Occasionally parties come to mediation after entry of judgment in a trial and with the case on the path to appeal. The circumstances for a mediated settlement are now more difficult because one party has tasted blood and the other is behind the 8-ball. Yet, if the stakes are large, the winning party has an incentive to scale down its recovery in return for certainty; the losing party has an incentive to reduce the dimensions of its loss.

The Court of Appeals for the 1st Circuit screens cases in which mediation may be productive and invites the parties to mediate with a retired judge. Some years ago the Massachusetts Appeals Court experimented with a similar program. The number of cases that settled did not warrant the expense of maintaining the needed space and personnel. Instead, the court consigned cases which might have been candidates for mediation to the tender mercies of a summary disposition panel.

When listening to argument before the Appeals Court, was I ever tempted to inquire whether the parties would like to take a last shot at mediation? Hardly ever. There are cases involving family business disputes, domestic relations issues, neighbor against neighbor quarrels (e.g. about overloading a common driveway easement) where I would think it likely that a victory for one side will only further poison relations between the contending parties. But there they are. The lawyers have briefed the case, they rise to argue. Sometimes parties just need an authoritative decision. A court’s decision is a better way than dueling.

After receiving the LL.B. from Harvard Law School in 1956, Rudolph Kass broke into the practice of law with Jerome L. Rappaport and from 1961, practiced with Brown, Rudnick, Freed & Gesmer, of which he became a partner.  In 1978, Governor Dukakis nominated Kass to the Appeals Court, on which Kass served from 1979 through 2003.  Following his retirement from the court, he has embarked on a third career as a mediator and sometime arbitrator under the banner of The Mediation Group (www.themediationgroup.org) and REBA Dispute Resolution (www.reba.net), as well as doing other law related odd jobs, such as acting as a master.