From Michael Zeytoonian’s Dispute Settlement Counsel Blog
(Part two on Baseball Arbitration)
To respond to clients’ needs for a better fitting dispute resolution process than some of the established methods, we created a very fluid and flexible Integrated Dispute Resolution (IDR) process earlier this year. IDR allows us to tailor the process to the specific circumstances of each dispute and integrate the right elements from other processes like case evaluation, the use of coaches, consultants and neutral experts, to give the parties what they need for the best resolution.
We hadn’t thoroughly addressed the need for closure in the IDR process or when the parties through their efforts in Collaborative Law or early mediation still can’t resolve the dispute completely. Statistics show that parties only come up short about 10% of the time or less, when they use Collaborative Law (CL) or IDR. Nonetheless, clients at the beginning of the process are still concerned about closure and what happens if they don’t resolve the matter.
CL requires limited representation by attorneys; if the case does not resolve through CL, the lawyers cannot continue to represent the parties in subsequent litigation. In divorce or probate cases, this is not that much of a deterrent for parties as they typically don’t have long-standing relationships with their attorneys and the representation doesn’t require the lawyers to know their business well. But in civil business and employment cases, where clients often have ongoing and trusting relationships with their attorneys, this limited representation requirement is a potential obstacle to using the CL process. Having to teach a new attorney about the client’s business or workplace adds another layer of costs and calls on the client to replace his trusted counsel with someone new to handle the litigation.
Up until now, the CL community’s response to “what happens after” has been to require changing lawyers. What if instead of thinking about changing lawyers, we just changed the “what happens after” CL or IDR does not achieve full resolution? Enter the use of baseball arbitration, also sometimes called Last Offer Arbitration (“LOA”), as an element and part of the IDR process, to change the “what happens after” scenario and to give the process certain closure.
Parties come to us because they want to resolve their dispute without litigating and avoid going to court. So why not, if the parties so choose, eliminate that fall back possibility altogether, even if the matter doesn’t get resolved by CL or IDR? Let’s include a optional closure provision in the initial participation agreement by which the parties can opt for Baseball Arbitration as a final step if they are not able to fully resolve the matter through CL or IDR.
Simply put, using baseball arbitration here would work like this: If the parties reach an impasse they cannot break, each party submits a proposal for final resolution to a neutral baseball arbitrator, who has the limited and sole role of reviewing each proposal and selecting the one that is the most just and reasonable. Per the agreement of the parties, the proposal chosen is written into the final settlement agreement, along with anything else that was previously resolved, and the matter is resolved.
I’d suggest one variation of baseball arbitration; I’ll name it All-Star Arbitration or IDR Arbitration and it works this way: The arbitrator reviews the proposals from each party and has the flexibility of picking the best elements from each of the proposals. He cannot substitute his ideas or judgment, but he can integrate the best elements of what the parties have given him according to his best discretion, to create the most reasonable and just solution, based on what he has been given by them.
This component takes away the concerns parties have about not getting closure and about having to start over again with litigation. It also eliminates the need to impose CL’s “withdrawal” or “disqualification” clause on the lawyers if the matter doesn’t get resolved. With this last piece, the matter is guaranteed to get resolved through the IDR or civil CL process and the “what happens after” worry is gone.
Riddle: What did the civil Collaborative Law community say to Baseball or IDR Arbitration in 2010?
Answer: “You complete me.”
Hugh McIssac discusses the transformative approach and how it is closer to a therapeutic process than one where the main objective is to resolve disputes.By Hugh McIssac