MBA’s Conflict Resolution Week

By  Michael A. Zeytoonian, Member of the MDRS Panel of Neutrals/Guest Blogger

An annual national tradition in the legal community is the celebration of “Conflict Resolution Week” (CRW) and “Conflict Resolution Day” (CRD) on the third week and the third Thursday of October respectively. This tradition reportedly started here in New England by the New England Association for Conflict Resolution (NE-ACR). It is a week and a day to shine a spotlight on one of the most important bodies of work that lawyers and mediators do – help people effectively resolve disputes. This year, CRW will be from October 16 through October 20, with October 19 as CRD, and the Massachusetts Bar Association (MBA), through its Dispute Resolution Section, will be celebrating these events in a big way, from Springfield to Andover to Marshfield to Cambridge to Boston!

Dispute Resolution (DR), historically referred to as “alternative dispute resolution” or ADR, was once an alternative to going to a trial to get a case resolved. But recent trends show that people are increasingly choosing to resolve their disputes using these other ways of resolving their disputes more so than going to trial, and often in place of the entire litigation process. In the early 1980’s mediation was rarely used, arbitration was just beginning to be used more regularly by businesses and Collaborative Law (CL) had not even been created yet. (CL was created through the efforts of one attorney in Minnesota in 1990). Today, mediation is the most frequently used means of resolving disputes, even more so than trials or arbitration. As a result, many practitioners and organizations, including the Massachusetts Bar Association’s (MBA) Dispute Resolution Section Council, have “dropped the A” in ADR and now refer to these other options as either DR or DRA (dispute resolution alternatives), reflecting the fact that people are intentionally turning to mediation, CL or arbitration to resolve their disputes. Trials today are rare – 97% of cases filed in courts settle and do not go to trial – and have become the default, to be used only when another DR process doesn’t result in a full resolution of the matter.

To celebrate the emergence of DR, and to help spread the word throughout the Commonwealth about what DR is, how it works and when and how it is being used to successfully resolve disputes, the MBA, through its DR Section Council’s efforts, is offering five different events, one on each day of CRW and each one in a different region of our state. All five the programs are free and open to the public. The MBA encourages anyone interested in DR as well as lawyers, practitioners of DR, judges, law school students and the general public to attend one or more of these programs.

Conflict Resolution Day on October 19 will feature a gala Reception at the John Adams Courthouse’s Second Floor Conference Room in Boston, starting at 5:30 pm, with a program opened by our two Chief Justices Ralph D. Gants and Paula M. Carey and featuring as its keynote Kenneth Weinberg, a man who has done important work in several conflict situations including 9/11, the Boston Marathon Bombing and other hotspots and events around the world.

The Peacemaker, a documentary film on the outstanding work around the world’s trouble spots of one man, Padraig O’Malley, will be the featured focal point of the Friday, October 20 event. The screening of this film will begin at 7 pm at Harvard Law School’s Ames Auditorium. After the film, both Mr. O’Malley and the film’s producer/director James Demo will be part of panel about the film and Mr. O’Malley’s ongoing work. This event is co-sponsored by the Harvard Program on Negotiation.

Other events around the state will recognize the work of those hundreds of volunteers working all through the state in court-connected community mediation programs (October 16 in the afternoon at the Hall of Justice in Springfield), peer mediation and other programs designed to address and resolve youth and community disputes (October 17 in the late afternoon at Massachusetts School of Law in Andover) and the use of mediation and CL to resolve disputes arising out of families in transition – divorce, inheritance and family business succession matters (October 18 in the early afternoon at the Ventress Memorial Library in Marshfield).

We encourage you to attend one or more of these events, learn more about DR and encourage others who may be interested in knowing about the many options available to them for resolving their legal issues to join in the celebration. For more information or to RSVP, please visit the MBA’s website at www.massbar.org.

A Giant Leap Forward: Dispute Resolution Drops the ‘A’ and Launches MBA Section

“Over the past decades, no area of practice has grown to have a wider impact on legal operations than dispute resolution.” -Brian Jerome

The numbers don’t lie: 95% of pending personal injury lawsuits end in a pretrial settlement (according to Law Dictionary’s website), while legal news site Above the Law reports that only 1.5% of civil cases in Massachusetts ever make it to a jury. We at MDRS are excited and grateful to have been part of this prodigious evolution in the practice of law during our 25 years of service.

Recently, our role in the DR community has taken an even more specific leadership turn. Our founder and CEO Brian Jerome spearheaded September 1 st ’s official launch of the MBA’s brand new Dispute Resolution (DR) Section. Not only does the MBA finally have a dedicated DR Section, there has been an important terminology advancement as well: previously known as Alternative Dispute Resolution, ‘ADR’ has graduated to a more appropriately-named Dispute Resolution, or ‘DR’, in reflection of its legitimate wide-ranging contributions to law.

A Resource for All

“We’re delighted with the launch of our Section, and are working hard to become the primary resource of collaboration, outreach, and service for the entire DR industry here in Massachusetts,” said Brian Jerome, Chair of the MBA’s DR Section.

The new Section is building off the dedicated efforts of the earlier committee-driven working groups to offer resources to all who wish to access them, well beyond the previously limited membership. Any MBA member can join the DR Section (at no additional charge). Participation offers many rewarding opportunities to collaborate and network with known leaders in all areas of the law, gain new information and practice skills, provide service to the community, and be part of actual industry innovation.

Goals for the 2016-17 Association Year are in development and include outreach to every law school in Massachusetts and the development of live case observation plans, establishment of an appropriate and meaningful CLE program, skills development via best practice events, focus on identifying and meeting specific needs of young lawyers and those in small firms and solo practices, and much more…all of which are being conducted with the promotion of current and future MBA membership and participation in mind.

As Massachusetts Superior Court Associate Justice Dennis Curran has expressed, “Most people don’t want to be in the legal system. [They] don’t want to go to court.” Dispute Resolution offers economical solutions, speed, confidentiality, scheduling ease, immense flexibility, high settlement rates, and in most cases, the ability to settle their case and move on with their work and lives. #DR

Collaborative Law, PEN Focus of MBA ADR Panel

by Attorney Michael A. Zeytoonian

Most people who are in a dispute think about mediation or arbitration as alternatives to lawsuits and litigation. But there are several other process choices that people have for how to resolve their disputes. That critical choice of which process to use is often the most important choice people make in resolving their legal issue. Among these other choices are Collaborative Law, Case Evaluation and a general approach called Planned Early Negotiation or PEN.

Four talented and experienced practitioners teamed up for a lively and enlightening panel presentation and discussion on these other approaches to resolving disputes on May 17 at the MBA office in Boston. The program was the last in a 2016 series of “Best ADR Practices” presented by the Massachusetts Bar Association’s (MBA) Alternative Dispute Resolution (ADR)Committee. Brian Jerome, Esq. of Massachusetts Dispute Resolution Services in Boston and ADR Committee Chairman, along with MBA President Robert Harnais, Esq., welcomed a full and engaged audience to the program. Jerome also announced that the ADR Committee will be expanded and transformed into the new Dispute Resolution (DR) Section of the MBA starting in September, 2016 and welcomed people to join it.

Michael Zeytoonian, Esq. of Dispute Resolution Counsel, LLC in Wellesley, opened the panel discussion and served as its moderator. Zeytoonian set the tone for these “cutting edge” DR processes, suggesting a different approach to resolving disputes by designing the DR process to be responsive to the situation. He noted that processes like Collaborative Law offer parties the flexibility and agility to be shaped to the circumstances of each unique dispute, and intentionally designed for the goal of resolving the dispute efficiently and creatively.

Paul Faxon, Esq, a transactional attorney whose firm is in Waltham, explained the basic elements and components of Collaborative Law, specifically focusing on its application in small, closely-held or family business disputes. Faxon noted that this approach’s effectiveness when ongoing relationships are important to the parties, where the parties want to control their destinies and not turn the decision-making over to a third party, and where cost and time efficiency is valued. He highlighted some of the basic elements of Collaborative Law including the open and voluntary
sharing of all relevant information and the shared retaining of neutral experts that can freely and independently serve as a resource to the negotiation process.

David Consigli, a CPA and business valuation expert with the CPA firm of Alexander Aronson & Finning in Boston and Westborough, spoke about the advantages to using a neutral expert in a Collaborative case or a Mediation. He compared the role of an independent expert providing value to all parties as opposed to being hired by either the plaintiff or the defendant. He pointed out the value of having expert information available in business break-ups or partnership disputes, as well as the importance of valuation information in business succession planning.

John Fieldsteel, Esq., a lawyer, mediator, arbitrator and case evaluator whose specialty area of practice is complex construction cases, spoke about using case evaluation as a tool and an approach that can often be transitioned into mediation or used to assist a mediation. Case evaluation gives the parties a better sense of the strengths and weaknesses of their case as well as good indication of what the range of damages would be. Fieldsteel talked about the value to the parties of giving them good information, often confidentially, about the strength or viability of their positions and how useful this neutrally given information is in reaching a settlement.

MBA CLE Mediation Program

The Massachusetts Bar Association CLE Program, Shuttle Diplomacy: Winning Your Mediation During the Private Sessions, is “designed for both plaintiff and defense lawyers who regularly mediate or for those just getting into the game.” I am pleased to be a part of an experienced faculty team whose goal it is to help the continuing of legal education in the following areas:

Winning in private sessions;
Avoiding common pitfalls;
Using bracketing to your advantage;
Deciding how much information to give each party.

I’m looking forward to our webcast Tuesday, September 27, 2011, from 4pm-6pm at the Massachusetts Bar Association headquarters at 20 West Street, Boston, Massachusetts, 02111.

For additional information, please see the MBA website here, or contact me at bjerome@mdrs.com.