Resolving commercial and construction disputes is expensive.
According to one source, 98% of commercial disputes are resolved prior to trial or arbitration. However, most are not resolved until the parties have spent an enormous amount of time, energy, and money on discovery and motions.
Even worse, the parties are usually unable to continue a working relationship after this warfare.
Fortunately, there are alternatives — and they’re designed just to avoid these high costs and damaged relationships.
Meet your alternatives: Guided Choice Mediation and Civil Collaborative Law. Two very different processes with the same goal: early, cost-effective dispute resolution.
Civil Collaborative Law
Collaborative Law requires each party to engage counsel trained in the process who commit to withdraw from the representation it cannot be resolved through the collaborative process. The collaborative lawyers to work together to overcome the obstacles to resolution, such as the need for information sharing without formal discovery. The commitment to terminate the representation if it progresses to litigation is intended to reduce the adversarial nature of the information sharing and eliminate entrenchment in positions.
In other words, through cooperation, collaboration, and open communications the parties are more likely to find an effective interest-based resolution.
As practiced in family law, the collaborative bar is relatively small and the lawyers have worked with each other numerous times building trust that enhances the process. The promise of collaborative law is that it not only will reduce costs and achieve better settlements, but as its founder Stuart Webb said in his original statement it is more than likely to lead to a change in the way the parties relate to each other in the future.
Collaborative law works in family law in part because the parties will continue to interact — sharing parenting responsibilities. From this experience, we expect collaborative law to have a more significant impact on parties with an ongoing relationship rather than one where maximizing a single result is paramount.
Guided Choice Mediation
According to Paul Lurie and Jeremy Lack:
The Guided Choice process is about shortening the period to settlement and thus reducing the expense without compromising on quality, while allowing parties greater control over their expenses and the outcomes they can achieve.
The purpose of Guided Choice Mediation is to use the unique position of a mediator — the only person other than an advocate with whom the parties can communicate without the fear of disclosure — to resolve the matter earlier. A key feature is engaging the mediator very early in the dispute and allowing the mediator to mediate the process for resolution as well as the substance of the dispute.
Unlike traditional mediation, Guided Choice Mediation is a multi-stage process that is not a single day event. It is a flexible process but guided by seven core principles:
- A commitment to mediate process first — recognizing that the standard one or multi-day mediation where the parties determine critical factors, such as timing, information exchange, and participation, does not fit every negotiation.
- Confidential discussions with the parties to investigate the reasons for impasse — the most important tool the Guided Choice Mediator has is an ability to investigate these reasons confidentially;
- Flexible process design based upon the specific obstacles determined by the mediator — in mediation or settlement discussions one size does not fit all — based upon her investigation of the obstacles, the mediator will be in the best position to recommend when mediation is likely to be fruitful, what information needs to be exchanged beforehand, who should participate, etc.;
- Limited information exchange based upon the determination of the causes of impasse — without conducting full scale discovery the mediator determines what information the parties are lacking that may be blocking a willingness to settle;
- Guided Choice Mediator works with the parties to anticipate the obstacles to fruitful substantive negotiation;
- Ongoing involvement of the Guided Choice Mediator if initial negotiations fail;
- The use of binding or non-binding evaluation of key issues by experts.
Although there is much more to it, the great promise of Guided Choice Mediation comes from using a mediator as a process facilitator who can work independently and confidentially with the parties. If the process is tailored to meet and overcome the likely obstacles to settlement, mediation is more likely to lead to settlement, will achieve this goal at a lower cost, and will lead to more satisfactory interest-based settlements.
These are both exciting new processes that are intended to reduce the time and cost to resolution and quite possibly lead to a repair of the relationships of the parties by focusing on interests rather than sitting a fixed sum.