By William M. Levine and
E. Chouteau Levine
When lawyers think about how to resolve disputes, they usually first consider traditional modes such as lawyer-to-lawyer negotiation or litigation. Other processes — such as mediation, collaborative law or even arbitration — often are considered marginal “alternatives.”
Together, the traditional and alternative approaches comprise what Cleveland family law attorney James H. Cahn calls the dispute resolution “food court.” Cahn’s analogy aptly conjures an image of an easily accessed array of process options. But it also conveys a secondary principle worth considering: that, as with food court offerings, legal consumers can mix and match dispute resolution methods fluidly to address changing needs. Parties have the ability to take control of their legal process, to change course if necessary, and to utilize a variety of approaches when appropriate and beneficial.
We all know the many advantages and limitations of dispute resolution options. We also are used to considering some or all of them with our clients. One suspects, though, that many of those discussions are perfunctory. Yet we still too often see each alternative course as linear, in isolation, and not as complementary parts of what can be an eclectic process.
As a result, we risk missing the opportunity for a more efficient and client-friendly experience.
Take the example of traditional negotiation, in which a divorcing couple cannot agree on interim arrangements for the payment of bills, the use of assets or the sharing of parenting responsibilities. Lawyers need to attend to those matters, if only to “put out the fire” before addressing the larger, long-term issues of the case.
Sometimes, the firefighter’s water turns out to be gasoline, in the form of inflammatory letters, motions and affidavits. Goodwill is undermined, and the clients and their lawyers can get burned in the process.
Retainers are consumed before their time, but the damage is by no means financial only. Clients may become disillusioned with their newly formed attorney relationships that did not yield immediate, positive and cost-effective results. Sometimes the result is an expensive stalemate.
When early impasse does occur, the case-in-chief is at least delayed, while the parties posture about going to court and preparing motions. Then, they wait (sometimes for a long period) for counsel and court availability.
When the appointed date arrives, the parties and counsel often spend a long day in court for a contrastingly short argument. The parties then wait again, this time for temporary orders from a judge who does the best he can with minimal, overheated and frequently distorted exposure to the important “facts” in play. Usually, the decision is reasoned; sometimes it is not.
What divorce lawyer has not experienced the exhaustion, runaway costs and client-lawyer alienation of such early infighting and spiraling of an out-of-control case?
Think about a different kind of case, one in which the parties are not plagued by preliminary feuding. They are equipped to handle interest-based negotiation without mutual destruction, but they just cannot get past significant property valuation issues.
Unlike temporary support or custody matters, these litigants cannot even go to court to resolve these necessary questions that may alone stand as obstacles to a rational distributive negotiation.
Rather, the parties and counsel must complete discovery, prepare for and attend a pre-trial conference, await trial and finally try valuation.
Many thousands of dollars (the range is obviously great), and many months or even years later, a judge will finally (well, subject to appeal) settle the controverted value, but at the cost of time, money and the loss of autonomy in making both the valuation and the distributive decisions.
Enter single-issue mediation or “bullet” arbitration. Just as lawyers think of traditional representation and litigation in a linear fashion, so, too, do they tend to think of mediation or arbitration as a single means to the end of comprehensive resolution.
Yet these alternatives can and do work in tandem with other processes.
Referring interim support, custody matters or a valuation question out to a brief and focused mediation can reduce the wear on the relationship among lawyers and clients at the early stages of divorce, allowing for interim resolutions at arm’s length.
For a more assured and prompt result, arbitration will put interim issues to rest and make resolution of the later, larger issue by other means less bruising for all concerned. And costs are mitigated in the process.
Mediators themselves should take note as well. Consider the same scenarios as above, but in the context of an agreed mediation process. As hard as the mediator may try, he sometimes simply cannot get the parties on track to focus on substantial, longer-term matters because of the acute focus that an early crisis provokes.
That can doom a mediation that might otherwise empower the parties to control and shape their own outcome.
Is there an alternative to abandoning the mediation, or letting it become bogged down in stalemate?
Rather than have the mediator spend all his goodwill on seemingly intractable preliminary matters, why not engage an arbitrator who will settle those early issues quickly, impartially and economically?
The parties may then return to focus on the larger issues in a renewed mediation that is less tainted by the previous impasse over which the mediator, and the parties, seemed to be powerless.
Similarly, in collaborative law, the parties may not focus on court outcomes, but the process may also never gain traction because of seemingly intractable preliminary disputes.
A mediator’s intervention or a quick and efficient arbitrator’s award may keep people out of court for good, as the collaborative practitioners keep themselves and their clients focused on the big picture.
We are not advocating for or against any one way of resolving disputes, traditional or alternative.
Rather, we suggest that counsel think about process in a more elastic way and consider interventions, perhaps cut outs, that may make the chosen primary process more efficient and less damaging for all.
The alternative in dispute resolution should not be lost to a rote adherence to one process alone when dynamic use of alternatives “as needed” just may help.
Remember the food court.
William M. Levine and retired Judge E. Chouteau Levine are the principals of Levine Dispute Resolution Center in Westwood and Northampton, Mass., where they mediate and arbitrate family law, probate and other matters.
Previously published in the May 21, 2012 issue of Massachusetts Lawyers Weekly, reprinted here by permission of the author.