Frequently Asked Questions About Mediation and Alternative Dispute Resolution

What is Preventive Law?

Preventive Law is both a body of legal services designed to avoid problems as well as a proactive approach to client advocacy. Its purpose is to provide the client with proactive leagl counsel and preventive training. Its goal is to maintain a healthier workplace and avoid employment-based disputes, claims and lawsuits from arising. Consistent with the old adage, "An ounce of prevention is worth a pound of cure", Preventive Law is invaluable.

It includes the proper drafting, reviewing and revising of all manuals, policies, written agreements, and procedures of the workplace to make sure that they accomplish what the clients want without having any elements or language that could cause problems for the client later. Conducting employment audits and providing the client with advice, counsel and ongoing review are all parts of Preventive Law. In addition to these, providing the types of trainings needed by businesses and organizations in areas like discrimination, harassment, diversity, negotiation skills, etc. are invaluable elements of prevention philosophy. Read more…

What is an Ombuds?

An ombuds or ombudsman is a neutral, independent, impartial, confidential problem solver and resource person who can provide tremendous preventive value to an organization. An ombuds can serve as important tool for addressing and diffusing situations before they escalate into a dispute or a more widespread problem within an organization or a business. Often, employees or members of an organization have a need for their concerns to be heard, acknowledged and sometimes either implemented or acted upon. An ombuds works on the front line, meeting with people, listening, observing, communicating, negotiating and helping to formulate good responses and craft good solutions. Read more…

What is Case Evaluation?

Case evaluation is a useful tool that can be utilized independently or in conjunction with mediation or any of the collaborative processes. Case evaluation takes a close look at the dispute, the issues, the positions of the parties as well as the applicable law, and objectively assesses the strengths and weaknesses of the case from each party’s perspective. It is a neutral analysis that focuses on the facts, the subject matter that is the context for the dispute and applicable statutes, regulations and case law.

A case evaluator’s insights are very different from those of experts that are hired by a party during litigation, and offer a more objective perspective than a lawyer representing a party in litigation, primarily because the case evaluator is a neutral and independent player in the process. Read more…

What is Mediation?

Mediation is an effective approach to resolving disputes. It is defined by the Massachusetts Supreme Judicial Court Uniform Rules on Dispute Resolution as “a voluntary, confidential process in which a neutral is invited or accepted by disputing parties to assist them in identifying and discussing issues of mutual concern, exploring various solutions, and developing a settlement mutually acceptable to the disputing parties.” The parties must agree to mediate their dispute, agree upon a mediator and determine the parameters for the mediation according to their needs. The mediator’s role is never to decide the matter, but that of a facilitator, to help the parties reach a settlement. Mediation is a non-binding process. It can be done by parties themselves without lawyers or with lawyers representing the parties and involved in the mediation. There is no third party decision maker in mediation, like a judge, a jury or an arbitrator.

As defined above, mediation is a private and confidential process. There is no filing with the courts; no complaint or any other document needs to be filed to initiate mediation. Read more…

How is Mediation different from arbitration?

While mediation and arbitration are often mentioned in the same sentence, they are very different. There are two major differences and several minor ones. First, in arbitration, like litigation, the parties surrender the decision-making to a third party – an arbitrator, or sometimes a panel of three arbitrators. While there may be some rules or procedures that apply, how they are applied and the process itself is largely in the hands of the arbitrator. Secondly, the arbitrator’s decision is binding and for the most part cannot be appealed. Even when an arbitrator has missed a legal theory or misapplied either the law or the facts, his decision will stand, unless there is an abuse of power, which is very rare.

Further, as arbitration increasingly includes more discovery, depositions, motion practice, witness testimony, etc., it is trending more toward litigation than true alternative dispute resolution (ADR). Thus the costs and the length of arbitration are increasing, particularly if there are three arbitrators, all of which must be paid by the parties. With the increase in the scope of arbitration, it also can have the undesirable impact of polarizing the parties and damaging relationships, offering little or no opportunity for any collaboration or improving relationships.

Mediation, as explained above (see What is Mediation?) is a non-binding process in which the parties maintain control of the outcome of the matter. Mediation allows for facilitation and open negotiation between the parties and the opportunity for the parties to shape the terms of their resolution in a way that is mutually agreeable to them. Typically there is only one mediator; there are occasions where there may be two co-mediators, that is up to the parties to determine.

What are Collaborative Processes?

Collaborative processes are approaches of resolving disputes in which the parties and their lawyers agree to work toward resolution without going to court and without litigation. Each process begins with this commitment by the parties and their lawyers not to litigate. Instead, they use streamlined and efficient methods which, from the outset, intentionally focus on settlement by design. The parties and lawyers accomplish this through a series of “four-way” or collaborative meetings, in which all the substantive negotiations take place. The meetings address at least five key tasks, each building on the previous one:

1. Discussion and agreement upon the rules of the collaborative process used;

2. Voluntary and open sharing and exchange of all relevant information;

3. Identifying interests of the parties;

4. Developing options for resolution, using neutral experts when appropriate;

5. Determining the terms of the resolution and reducing them to a settlement agreement.

Collaborative processes are confidential, and allow the parties and their lawyers to concentrate their efforts on satisfying their interests as well as those of the other party. Read more …

What does the “sovereignty of the client” mean?

In Collaborative processes or mediation, the clients maintain control over the decision-making with respect to the outcome or the resolution of the dispute. Decisions can not be imposed upon the clients by either mediators or by collaborative lawyers. While lawyers representing clients in either collaborative cases or mediation provide legal advice and counsel, they also work as facilitators, as do mediators, to assist the clients in reaching their own mutually acceptable resolution. So the clients are sovereigns over the end result.

The clients are also in control of the process, particularly in collaborative processes. The clients, assisted by counsel, dictate the pace of the process and are involved in determining the agenda for each “four-way” or collaborative meeting. The advantage to this is that issues and interests can be addressed in an order that is best for the clients and more conducive to reaching a good settlement result. Interests such as acknowledgements, apologies, adjustments in workplace culture, collateral agreements, and other things can be addressed and resolved in the most appropriate and reasonable ways that are tailored to meeting the clients’ needs.

How is Collaborative Law different from Mediation?

Both processes are interest-based negotiations intended to produce a settlement. The clients are the decision makers with respect to the terms of the settlement in both processes. They are both confidential and non-binding processes. The differences come in process structure, timing and in the lawyers’ roles.

Collaborative Law has a developed process structure based on collaborative meetings. The scheduling, agendas and the pace of the meetings are determined by the clients. The voluntary exchange of all relevant information takes place early on in the process. There is more opportunity for open negotiations, discussions about interests of the parties and brainstorming of ideas by parties and lawyers together to develop options in the collaborative processes. Further, all of the substantive negotiations take place during the four- way or collaborative meetings. Parties are always represented and advised by counsel; parties and counsel are present for all collaborative meetings. If experts are utilized, each is an independent, neutral expert retained jointly to serve both parties and the process itself.

In mediation, usually the parties are represented by counsel but lawyers are not required. Any sharing of information is left to the discretion of the mediator and the parties. There is no commitment by the parties not to litigate, so the mediation could take place either before a lawsuit is filed, during the ongoing litigation or often on the eve of trial. The mediator’s role is to work with the parties to facilitate a settlement, but not to provide legal counsel to either party, and not to make final determinations as to the outcome. Often the mediator requires a submission from each party setting forth the facts, positions and arguments of each side; this is confidential submission that is not typically shared with the other party. In mediation, often there is a joint opening session in which all parties are present, followed by a series of private meetings between the mediator and each of the two parties in the dispute. Mediations are typically designed to try to reach a settlement in one session with the mediator; occasionally there may be need for a follow-up session.

Why doesn’t the Zeytoonian Center offer arbitration or litigation?

There are cases and situations for which the use of arbitration or litigation may be more appropriate, but as clients become more savvy and aware of other methods of dispute resolution available to them, litigation and arbitration are becoming increasingly less utilized. One statistic that supports this shift is that over 98% of the cases filed in courts end up settling and not going to hearing or trial.

As arbitration increasingly includes more discovery, documentation, motion practice and testimony, it becomes more and more like the trial process and less like the more streamlined ADR tool it was originally intended to be. Lawyers and clients alike are noting that as this trend continues, arbitration is becoming litigation, the difference being that the parties pick (and have to pay for) the decision-maker. Since most arbitration is binding and allows no appeal, clients give up even more control over the outcome. These compelling statistics and trends beg the question:

If settlement of litigated cases is overwhelmingly more likely than trial, and arbitration takes control of the result completely out of the hands of the clients, why not intentionally focus on settlement as the goal from the outset of the dispute resolution effort, and use processes that are created and designed specifically for that purpose?

The logic of choosing either mediation or a collaborative process that is more cost and time efficient, less damaging to relationships and reputations, confidential, offers a better utilization of expert information and is designed to develop options that are tailored to the circumstances of the parties is inescapable. Beyond the logic, there is the philosophical commitment to the sovereignty of our clients. Not only is this approach less risky and more tailor made, it also resonates with clients who want to be involved in a process and decision that directly impacts them. That is why the Zeytoonian Center chooses to be more sharply focused on those approaches that we believe best deliver what clients want and need.

What is Proactive Counsel?

It is one of three essential elements of parts of the legal services we provide, along with efficient representation and collaborative resolution. These three phrases outline our approach and philosophy to helping our clients. We want to partner up with you as early as possible to know your situation, your organization, understand your business and your goals. This is a critical part of what proactive counsel is all about.

Providing proactive counsel begins with educating each other. We want you to educate us on your approaches, your challenges, your circumstances and your situations. And then, we want to educate you and work with you to either take preventive measures to avoid disputes from arising or to approach disputes in ways that are best tailored to your situation when they do occur. Our goal is to provide you with well-designed advocacy to protect your rights, satisfy your interests, and to resolve disputes efficiently and completely.

What is Efficient Representation?

Too often, when people get involved in a dispute, they react quickly and emotionally without giving the matter sufficient thought first, or without laying some important groundwork first, only to later regret their impatient response. That response is understandable, but part of giving solid legal counsel is to put the dispute in perspective and educate clients on their options. When individuals, businesses, employers, employees or organizations take the wrong approach for their situation and circumstances, it usually has devastating results.

It is important to see the situation clearly and develop a sound strategy or course of action before responding to any employment, business or organizational challenge. That is where efficient representation makes a difference. It’s not only essential that your lawyer protect your rights and work to satisfy your interests, but that your lawyer do so in a way that is cost and time-efficient, in a way that works best for your circumstances and situation, and in a way that is respectful of and consistent with your organization’s mission and business philosophy.

We work with you to resolve disputes the same way one would approach a business challenge, by first making a careful assessment of the problem, getting all the relevant facts and factors straight and then strategically and systematically solving the problem. If you approach a dispute without taking these steps, you run the risk that the dispute will become an adversarial battle of wills and a long, expensive and draining litigation process. If you go down that road without thinking it through first, even if you “win” your litigation, you probably don’t really win, when you factor in the time, cost, drain on your organizations and their resources, damaged relationships, negative publicity and the emotional toll.

What is Collaborative Resolution?

In his book, The Seven Habits of Highly Effective People, Stephen Covey talks about “win-lose” or “lose-win” situations as being less than optimal. We don’t want those kinds of costly victories for our clients. Our approaches are always mindful of the costs, the good use of time, the more direct and least harmful ways to solutions and the depth of your resolution of the dispute, going deep enough so that problem won’t re-occur. Our goal is to work with you toward a “win-win” result, rather than a “win-lose”. That’s collaborative resolution.

We help you work through this dispute together, efficiently and strategically, the way solid businesses and organizations would work through a problem, until we come up with the best solution for you. When appropriate for your circumstances, we work with the party on the other side of the dispute, assessing all the pertinent information, finding common interests and working creatively to develop the best solutions possible. We think outside the box, find options and ideas that are beyond the limits of courts and arbitrators. We satisfy your interests and achieve more lasting results.

What makes the Zeytoonian Center different?

Our approach. Our philosophy. The results we achieve, and the way we reach them. The way we work with you. All these are different from those of the traditional law firms or typical alternative dispute resolution (“ADR”) providers. We are a true hybrid between ADR providers and traditional law firms, and offer other services not founds in either. What we do is best described as “conflict resolution advocacy”.

One thing that makes the Zeytoonian Center different is that we do the critical assessing and analytical work with our clients at the beginning, not later on after the money has been spent, the damage has been done and too much time has passed. We take the time, and make the investment with you up front, working with you to approach the dispute strategically, finding and then using the best dispute resolution method for your specific circumstances and particular dispute.

We don’t just hastily start with litigation only to eventually get to a point when the notion of settlement is suggested as a “less risky” by-product of the litigation model. We know that over 98% of cases filed in courts get settled and never go to trial and that litigation can be devastating in all senses of the word. So rather than walk down the litigation road only to settle rather than litigate, we want to walk with our clients down the settlement road, so they only litigate if we can’t first settle.

We don’t suggest that the dispute go to arbitration based on a supposed premise that it’s preferable and more manageable than litigation, or because it gives parties a binding determination, or because parties can pick (and pay for) the judge they choose. Arbitration is becoming more and more like litigation and less and less like “alternative” dispute resolution. So rather that have our clients give up their decision-making to a third party, we want to facilitate the sovereignty of the client, and only if they cannot develop and create their own good resolution, tailor made for their needs and circumstances, only then might we suggest hiring a third party to decide how to end – but not necessary resolve – the dispute.

We neither mediate prematurely before your case information has been developed enough, nor do we mediate so late in the process that the costs have already been run up, the years have already passed, the relationships have already been fatally harmed and the damage has already been done.

We work with you to identify and choose the right kind of dispute resolution for your situation. And then we work with you to execute it, always being your advocate and your counsel. Our approach is unlike other traditional dispute resolution methods in which you are either not involved much at all or involved in a way in which you have little input. We believe in the sovereignty of our client and we work with you, as both your trusted legal advisor and process facilitator, to exercise that sovereignty, both in determining how to approach your dispute as well as deciding how it will be resolved.

What value do we provide to you?

Our research and feedback from clients and parties in disputes has told us what is important to them: They want good, practical legal advice that is based on their specific circumstances, so they can then decide how to best approach their problem. They want their rights to be protected. They want their interests and need met. They want to be heard and want what is important to them to be acknowledged. They want to get their problem solved as efficiently as possible, with minimum collateral damage and exposure.

Most parties involved in disputes don’t really want to sue or litigate, but in most cases they either don’t know that other alternatives exist or how those alternatives can work for them. Often, clients find themselves making decisions without having all the pertinent information and understanding they need to make a good choice.

We take the time to know your situation, to analyze how the applicable laws apply to your case and protect your rights, and to inform you on what choices exist and educate you on how each of the various options of dispute resolution work. Then, we discuss with you the best legal strategy for going forward and create a blueprint for executing that strategy.

We do go through the alternatives with our clients because it is important for you that we do so. It gives the client valuable information and advice and it helps the client to make an educated, well-informed decision on what approach is best for your unique case and the specifics of your dispute.

Our Center reflects and embraces a new approach to the law: conflict resolution advocacy. This advocacy focuses from the outset and by intention on resolving the conflict. In its highest form, in its fulfillment, the law exists to solve problems, settle disputes and restore order, peace and justice.

We believe this is what people in a dispute want – an efficient, empowering and at the same time practical, creative, satisfying, respectful and fair way of settling disputes, protecting their rights, meeting their interests and restoring order. We believe that you will recognize what we provide and how we provide it as valuable. We invite you to utilize our Center to resolve your disputes in a way that makes sense, which allows you to be a well-informed decision maker and which best fits your circumstances and needs.