Dispute Settlement Counsel by Michael Zeytoonian.
This blog post is in honor of “March Madness”, i.e. the NCAA’s annual basketball championship, which is basketball at its best.
For basketball junkies like me, there was a great article in the Fall, 2013 issue of Good magazine about the Triangle Offense. This system was used by Phil Jackson and Tex Winter to redirect the talents of superstar players to work within a system with others team members without restricting their natural abilities. The similarities between using the Triangle Offense and using Collaborative Law to resolve disputes are striking. Here are some excerpts:
The Triangle offense is less a series of set plays and more a collection of scenarios or options…There is a system, a master plan that governs movement on the court. But rather than prescribe and proscribe, the triangle puts the decision making in the hands of the players. Players are not imposed upon by the system; they are the system… The triangle doesn’t provide answers or presume to know the answer outside of the context of game play. Instead, it offers up guidelines for cooperation, suggestions of how we can, in short, get along and achieve a common goal… Order isn’t something you decide on in advance; it’s a puzzle to be solved, drawing on the collective resources of the group…. To put things in theoretical terms, the triangle bridges the schism between intention and execution on the basketball court.”
So what does that have to do with dispute resolution or Collaborative Law? It is actually the essence of Collaborative Law. Think about it a bit. Ask yourself if this is the kind of “system” you’d like to use the next time you have a dispute to resolve, knowing that you don’t want to go to court or go through the litigation process.
Here’s what you need: An approach that gives the parties and lawyers in the dispute a structure, but also the flexibility to mold the structure to suit the circumstances of the dispute; speed and efficiency; reasonable costs; a framework to negotiate within that is private and creative; a vehicle that gives the parties the opportunity to speak and be heard by the other side and allows the conflict to be aired out some without getting damaging and divisive; an avenue that allows people from the two different sides to collaborative with each other without feeling compromised or susceptible to attack.
Collaborative Law does all those things. It empowers parties and lawyers to utilize their talents and skills without having to beat the other side. It gives room to negotiate without ignoring one’s rights or compromising one’s interests. It sets some boundaries and guidelines, but is not by definition too rigid, dogmatic or cumbersome, like the rules of Civil Procedure. Collaborative Law is structured enough to keep the parties on course and working toward their goals, but flexible enough to allow them to create, respond to and build on each other’s ideas as necessary.
Collaborative Law doesn’t rely upon a third party to make the ultimate decisions about the dispute; it creates a framework for lawyers and their clients to work within to resolve a dispute. Collaborative Law doesn’t make the decisions; it puts the decisions in the hands of the parties and their lawyers. It is not a procedure that is imposed on the people in the dispute; they are the process. It is not designed to prepare for a trial that rarely happens. (More than 95% of the cases filed in court never go to trial; they settle.) It offers guidelines and principles and a container of trust to help the parties reach their goals. If the intention of the parties and lawyers is to resolve the dispute Collaborative Law by design, Collaborative Law is the bridge that connects that intention with the execution of “how to get there”.
If you prefer a system that allows you and those involved to be players within a real collaboration without stifling your creative ideas and options, rather than be carry out a series of set plays (pic and roll; isolation and drive, etc.) called by someone else, Collaborative Law is for you.
Recently while reading Deborah Laufer's ADR Network newsletter, I cam across the following: ABA Section of Dispute Resolution Task Force on Improving Mediation Quality - http://www.abanet.org/dispute/documents/FinalTaskForceMediation.pdf. The Task Force focused...By Jeff Thompson