Several efficient and cost-saving ADR processes enable individuals, families, businesses, and organizations to maintain control over their relationships with others by empowering them to resolve their disputes peaceably and confidentially.
Larry is trained and experienced in representing clients using these processes for resolving their disputes and serving as a third-party neutral and ADR facilitator. He can assist parties in designing variations or combinations of these processes to advance the early settlement of their case.
The collaborative dispute resolution process (sometimes called Collaborative Law) is for parties represented by counsel. It is a structured, voluntary, non-adversarial approach to resolving disputes wherein parties seek to resolve their dispute without having a ruling imposed upon them by a court or arbitrator. The process is based on cooperation and teamwork, full disclosure, honesty and integrity, respect and civility, and parity of costs. Parties engage in interest-based negotiations as opposed to positional or rights-based bargaining.
Should the dispute not be resolved, the collaborative lawyers must withdraw and cannot represent their clients in any adversarial proceeding involving the collective matter. This core element of the collaborative process enables the parties and their lawyers to devote their time and energy to resolving the dispute.
For more information and resources on Collaborative Law, visit the website of the Global Collaborative Law Council.
In the mediation process, a neutral person, the mediator, meets with the parties in a private, confidential setting to assist them in settling their dispute. The parties are in control of achieving a mutually acceptable settlement. The mediator may suggest ways of resolving the conflict but will not impose a settlement upon anyone and will not act as an advocate for any party. Parties may or may not be represented by counsel. Before a suit is filed, parties may voluntarily agree to mediation. In a pending case, the court may order parties to mediation.
Settlement conferences are expected once a matter is in litigation or arbitration. In settlement conferences, parties attempt to reach a mutually agreeable dispute resolution without proceeding to trial or arbitration. Unfortunately, settlement conferences generally occur as the case nears trial or an arbitration hearing, and the parties have expended vast sums of money and have withstood months or even years of disruption of business and emotional distress.
Early settlement conferences which employ interest-based negotiations can resolve most disputes, provided that all relevant information has been disclosed and the parties and their lawyers are willing to proceed honestly and in good faith to arrive at a settlement that meets as many of the interests, goals, and concerns of all parties, as possible. Settlement conferences may or may not involve a neutral facilitator.
Ombuds or Ombudsmen are neutral, independent, impartial, confidential problem solvers. They can provide tremendous preventive value to an organization. An Ombuds can serve as a resource person within an organization and help address and diffuse situations before they escalate into a dispute or more widespread problem within a business or organization.
Often, employees or members of an organization need their concerns to be heard, acknowledged, and sometimes either implemented or acted upon. An ombudsman works on the front line, meeting with people, listening, observing, communicating, negotiating, and helping to formulate good responses and craft creative solutions.
Cooperative Law is similar to Collaborative Law in that it is voluntary and employs interest-based negotiation. Most Cooperative Law Lawyers are also Collaborative Law Lawyers. A significant difference between the Collaborative and Cooperative processes is that Cooperative Lawyers can continue representing their clients in an adversarial proceeding involving the collaborative matter if the dispute is unresolved.
Chorda Conflict Management Services of Austin, Texas, developed the Two Track model for resolving disputes. The model is designed to save time and preserve business relationships by separating settlement negotiations from litigation and arbitration. In this process, parties engage Tract One attorneys trained in interest-based talks and serve as settlement counsel.
The process is similar to collaborative law, with one significant difference. In this process, the parties may also engage Tract Two attorneys, who will be available to provide advice as requested and will represent them in litigation or arbitration if the dispute is not resolved.
In arbitration, the parties submit their dispute to one or more impartial persons selected by the parties for a decision. The decision is called the “Award” of the arbitrator(s), is made in writing, and depending on the agreement of the parties, is binding on the parties or non-binding. If acute, the award, if necessary, may be enforced in court. The process is more informal than litigation and can be a cost-effective alternative to litigation. As in litigation, parties are generally represented by counsel.
Using a neutral facilitator can sometimes mean the difference in success or failure in a settlement conference. The duties of a neutral facilitator can be planned to suit the parties’ situation.
In partnership, board of directors, or shareholders meetings, when sensitive issues are on the table, a neutral facilitator trained in interest-based negotiations can guide the discussions in a non-adversarial manner.
Occasionally, parties in serious conflict have difficulty finding mutually convenient dates, times, and locations to meet. Neutral Facilitators can serve as conveners. Often parties in a dispute have difficulty communicating. A neutral facilitator can assist the parties in communicating in a non-adversarial manner.
Early Neutral Evaluation
Early Neutral Evaluation (ENE) aims to enhance direct communication between the parties about their claims and supporting evidence. ENE seeks to position a lawsuit for early resolution by settlement, serving as a cost-effective substitute for formal discovery and pretrial motions. ENE provides a “reality check” for clients and lawyers by taking a close look at the dispute, the issues, the positions of the parties, and applicable law and objectively assessing the strengths and weaknesses of the case from the perspective of all parties. Communications in an ENE session are confidential and may not be disclosed to anyone else not involved in the litigation unless the parties agree otherwise.