A number of efficient and cost-savings ADR processes are available which enable individuals, families, businesses and organizations to maintain control over their relationships with others by empowering them with the ability to resolve their disputes peaceably and confidentially.
Larry is trained and experienced in representing clients in the use of these processes for resolving their dispute, and in serving as a third party neutral and ADR facilitator in these processes. He can assist parties in designing variations or combinations of these processes to advance early settlement of their case.
The collaborative dispute resolution process (sometimes referred to as Collaborative Law) is a process for parties represented by counsel. It is a structured, voluntary, non- adversarial approach to resolving disputes wherein parties seek to negotiate a resolution of their dispute without having a ruling imposed upon them by a court or arbitrator. The process is based on cooperation and team work, 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 in the process, the collaborative lawyers must withdraw and cannot represent their clients in any adversarial proceeding involving the collaborative matter. This core element of the collaborative process enables the parties and their lawyers to devote all of their time and energy to resolution of 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 the parties in settling their dispute. The parties are in control of achieving a mutually acceptable settlement. The mediator may suggest ways of resolving the dispute, 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 suit the court may order parties to mediation.
Settlement conferences are common once a matter is in litigation or arbitration. In settlement conferences parties attempt to reach a mutually agreeable resolution of their dispute without having to proceed 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 resource persons 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 have a need for 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 if the dispute is not resolved, Cooperative Lawyers can continue to represent their clients in an adversarial proceeding involving the collaborative matter.
The Two Track model for resolving disputes was developed by Chorda Conflict Management Services of Austin, Texas. 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 who are trained in interest-based negotiations 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 binding, 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.
Use of 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 meetings, or 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.
On occasion, parties in serious conflict have difficulty in simply coming up with 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
The goal of Early Neutral Evaluation (ENE) is to enhance direct communication between the parties about their claims and supporting evidence. ENE aims 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 as well as 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.