Dispute Resolution Diffuses Explosive Situations

by Sheri Stevens Wilson

The Islamic Society of Greater Worcester is seeking town approval to develop a Muslim cemetery on 55 acres it plans to purchase in Dudley, Massachusetts. The group seeks a local option where their burial customs could be followed, which sometimes include ‘green’ burial options, direct contact with the dead, very specific positioning of the body according to their religious tradition and beliefs, and dignified behavior at the burial. At a recent public hearing, many residents voiced pointed opposition to the plan. Among the concerns were those of the possible effect on the local water table, traffic, noise, and vandalism. There were additional remarks made, however, which clearly showed emotional reactions and which transcended more straightforward issues.

Most present at the recent Zoning Board of Appeals public hearing might say there’s no hope of ever reaching resolution of this situation.

We hear this all the time.

We are mediators.

What are mediators? Mediators are skilled negotiators who assist those on opposing sides of an issue work toward agreement. Mediation has been a system of resolution for thousands of years and is practiced across the world in different cultures. As objective and unbiased neutrals, Mediators bring reasoning to situations where emotions and complex issues have often taken over productive discussion. Mediators have many different tools they employ, based on the conflicts and the parties involved. In general, they work to determine the genuine, underlying issues. They identify and dismantle false beliefs. They provide support for the parties to form new opinions based on facts. And they guide negotiations to determine the ways in which everyone’s needs can be met. Peacefully.

The beauty of mediation is that the parties retain all of the power, and are never made to accept methods of resolution that that decision-makers are not in agreement with. And the rate of settlement in approaching even the most complex problems in this manner is very, very high.

Attorney Brian R. Jerome, Founder and CEO of Massachusetts Dispute Resolution Services [MDRS] shares, “The controversy in Dudley involves competing interests of many factions and an interpretation of the law which creates uncertainty for all involved. That it is all in the context of an Islamic religious group raises the potential for passions and emotions to be inflamed, in part as a result of fear. In situations such as this, mediation provides a process where all of the competing groups can be heard, and their true needs and interests can be accommodated and satisfied by a carefully sculpted resolution. The parties would benefit from a better understanding of each other, and an attempt to collaborate rather than confront one another. Proceeding to a final arbitrary zoning decision may well be all or nothing, with a winner and a loser, rather than the give and take of mediation and what could be a win-win result. We encourage the parties to consider mediating their dispute, rather than continuing confrontation with the potential for further negative escalation.”

At MDRS, we’ve been helping people resolve disputes for 25 years. As leaders in the law, we find nothing as rewarding as helping our clients attain better end-results than they ever thought possible. If you are involved in a conflict and would like to speak with us further, please call (800) 536-5520 or visit us at www.mdrs.com.

Cross-Examine the Case Before Filing a Lawsuit

by Michael A. Zeytoonian, Esq.

I think it’s a good idea for people who find themselves in a dispute to do some cross-examining before they file a lawsuit.

Sounds odd, right? After all, based on what we know about litigation and how the legal process works from what we see on TV and in the movies, cross-examination is the high point of the lawsuit; it’s what everything builds up to, right?

There’s My Cousin Vinnie Gambini, (Joe Pesci), cross-examining the witness about how long it took him to cook his grits: “Were those magic grits, like the beans Jack bought to grow his beanstalk?”

Or passionate Lt. Calley (Tom Cruise) cross-examining high ranking Colonel Jessup (Jack Nicholson): “I want the truth!” “You can’t handle the truth!”

Matthew McConaughey in A Time to Kill: “Imagine the girl is white.” Atticus Finch in To Kill a Mockingbird. You can probably name ten more great TV scenes and riveting cross-examinations.

Real life court cases are not that way. First, less than 4% of the cases that get filed in court ever get to trial. Yes, you read that right. It happens rarely, and when it does, it is are not the stuff Hollywood is made of.

So back to my opening suggestion: Do some “cross-examining” of the case before deciding to file a lawsuit or hire a scorched earth litigator. Let’s move the spotlight around from just one place where your supposed “smoking gun” evidence is. Let’s examine behind the obvious and the positional statements, and peer into the corners of the other considerations about this case of ours. Test our assumptions, our biases and our maybe overconfidence about our “slam-dunk” case. Let’s ask a few more “why” questions before we start.

“I want to sue the other side,” you tell the lawyer you interview.

“Ok. Can I ask you why? What do you hope to achieve by litigating?”

“I want my day in court. I want the other side to suffer. I was wronged here; I want that wrong fixed and to get some justice.”

Suppose the lawyer stopped the inquiry of the client here and said “OK, let’s get started. We’re going to file a complaint, move things along and get you justice. Let me get some of the facts and then we’ll start wearing down the defendants into submission.”

You feel good hearing that. Pumped up. Yeah, baby; that’s what I’m talking about. You get your emotional high. Unfortunately, that high you’re feeling is very short-lived.

But you really haven’t had your dispute and your situation cross-examined to truly know what is ahead or what your options are. That was barely sufficient questioning to sign you up as a client. But not nearly enough to set you and your case up right. The lawyer didn’t even ask you what your desired goal was, or what you would consider to be a good outcome!

Now here’s what I’m talking about. A reality check. A cross-examination of the client about what she really wants, the interests underneath the position, her emotional bandwidth, pragmatic needs and level of risk aversion.

I’m reading another wonderful book by Dan and Chip Heath called Decisive. It cautions us against “the four villains of decision making”: Narrow framing, confirmation bias, short-term emotion and overconfidence. Essentially, the Heath brothers tell us with a great collection of story-telling and examples that we make poor decisions because one or more of these factors is at play in our decision-making process, and explain how to avoid them. Decisive, like their other books, Made to Stick and Switch, is a must read.

It is up to one’s lawyer, as a trusted advisor, especially if that lawyer is a person’s “Primary Care Lawyer (PCL)”, to cross-examine the client before deciding what course of action to take. Here are some recommended inquiries for you as a client to hear your lawyer ask you, before you sign on with the lawyer and absolutely before you choose a dispute resolution process. If your lawyer is not “cross examining” you with these before you start working together, think hard about getting a second opinion or interviewing more lawyers!

What is your goal here? What would a good outcome for you look like?

What does getting your day in court mean to you? What do you hope to get out of it?

Have you considered other ways of accomplishing your goals besides litigating?

What is your time frame for when you need to have this dispute resolved?

What is the skeleton in your closet that I need to know now so I’m not blind-sided later?

What is your level of risk aversion? Put it this way: A jury could decide this case the other way and you’d get nothing after spending several years and several tens of thousands of dollars on this litigation. How does that sit with you?

Do you want to control the outcome? Or would you prefer to leave the decision-making about your case to a jury of people you don’t know? Or an arbitrator who is probably very knowledgeable in the subject matter and applicable law in this case?

Can you negotiate or collaborate with the other side with some professional assistance from negotiation-style lawyers and/or a mediator?

Are there other parties and other considerations that we can include in our assessment of this dispute that will help us expand the pie of possible options for settlement?

How important is it to maintain a healthy (business, civic, organizational or family) relationship with the other party(ies)?

How important is confidentiality to the parties in this case?

This inquiry lays a solid foundation for going forward in a way that will achieve the best outcome. This cross-examination, done before you start, is likely far more valuable than the Hollywood one that will almost certainly never happen.

Michael Zeytoonian is a member of the MDRS Panel of Neutrals, and is the Founding Member of Dispute Settlement Counsel.

Celebrating 25 Years of Dispute Resolution at MDRS

MDRS 25As MDRS celebrates 25 years of providing Dispute Resolution, we reflect on no less than a quarter of a century in our field — a field which has thrived beyond all expectations: no longer a mere alternative to the courts, but widely recognized as a more direct route to positive outcomes for all kinds of disputes.

It can be argued that in the past 25 years, no area of legal practice has grown to have a wider impact on the practice of law than the cumulative forms of Dispute Resolution. Over 97% of all cases presented now reach settlement without trial, such that Dispute Resolution has moved into its rightful position — and away from being referred to as the ‘alternative’ resource. With fewer constraints than a courtroom, proven convenience and cost savings, and happier clients in the end, ‘DR’ continues to expand with new tools and techniques, and an ever-widening pool of practitioners.

One need only look back to our individual and collective experiences of bringing the practice into the mainstream, to see how much the reception of DR has changed, even as the basic principles have stayed relevant and enduring. We recently dug out a clipping of an article featuring our founder Brian R. Jerome, an early adopter of what was, in those early days, an oft-criticized method of resolving conflicts.

Reference to “the costly and painfully slow court process” seem familiar and timely, but it’s a quote from The Beverly Times article, dated August 8th 1995, when DR was still a revelation for many accustomed to seeing litigation as the only option.

Timeliness and civility? Also present in the enthusiastic testimony of a client who worked with Brian in the early days:

“One session with him and we were completely back on track…It was very civilized, which was a nice way of getting all the feelings and thoughts out. I felt it was very much like having a lawyer and a psychiatrist at the same time.”

And yet, in 1995, the State Supreme Judicial Court had only recently set up a committee to phase in dispute resolution.

As the old saying goes, “In matters of style, swim with the current; in matters of principle, stand firm as a rock.” The hundreds upon hundreds of DR practitioners in Massachusetts, and the continuing increase of DR use in so many areas of the law, demonstrate how comprehensively Dispute Resolution has been accepted as the right option for resolving disputes, after so many years of being the “alternative.”

Of course with this progressive expansion and growth come increased responsibility. Serving this year as the Chair of the Massachusetts Bar Association’s DR Committee has given our founder Brian Jerome an opportunity to bring even more to the field he has dedicated his career to. It’s a pleasure to be able to announce that the Dispute Resolution Committee is moving forward with a new voice and refreshed objectives. We anticipate sharing with you, our clients and friends, many new and exciting opportunities in connection with this dedicated group in the coming months, not to mention many more months and years of exciting developments in our field – not only for MDRS, but for great numbers of our esteemed colleagues who practice Dispute Resolution and continue to advocate for peaceful, efficient, and cost-effective resolutions of conflict.

We at MDRS want to acknowledge that this milestone would not have been possible were it not for you, our treasured clients and friends. We thank you, appreciate you, and look forward to continuing our work with you in the future.

MDRS About Town

IMG_3243-smallThis Spring, Brian Jerome has helped lead a variety of ADR-related events in the Boston area.  Here are a few of the places where he has been.

In March, Brian participated in, and helped present, a Mediator Training Program at Salem Bar Advocates with Attorney Michael Merriam.

In February, Brian helped present an Insurance Training Seminar for Claims Handlers at The Hartford in Connecticut with Ryan Hamilton of Resolute Systems.

Earlier this month, Brian participated on an ADR Panel at Northeastern University Law School with Judge Judith Dein and Attorney Michael Zeytoonian.

On April 18, Brian participated in a Mock Mediation Training at New England School of Law with Professor C. Michele Dorsey

Massachusetts Caregiver Homes

For many families, caring for a family member who is disabled or elderly can be a financial and emotional burden. Often it could seem that placing a disabled family member in a nursing home is the easiest route to take. However, in Massachusetts there is an alternative solution.

Founded in 2005, a program of MassHealth called Caregiver Homes allows for a disabled or elderly person to remain in their home and with their loved ones while taking some of the strain off of their caregivers both emotionally and financially.

The program provides money and resources to those families of elderly or disabled individuals, allowing that person to live in their own home rather than a nursing home. The program makes it possible for a family member or friend to become the primary in-home caregiver and get paid a stipend of up to $18,000.

Ultimately the disabled or elderly individual is more comfortable since they do not have to adjust to a new living situation. The state saves money, and the quality of life is often improved for everyone involved.

For more information on Caregiver Homes, please visit http://www.seniorlink.com/

 

MDRS March Newsletter is Out

We sent our spring newsletter out last week. Please let us know if you would like us to add you to the list. Please contact us at caseadmin @mdrs.com

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