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Why Clients Like Mediation

By Frank Laney

As a lawyer/mediator, I have had very few opportunities to participate in a mediation as a litigant. But I did once, which gave me some insight into why clients like mediation.

My wife and I were selling our house. A buyer looked at it, decided he wanted it, signed a purchase contract and put down a $1,000 deposit. There were some small repairs he wanted, which we hired a contractor to complete. Then a week or so later he decided he did not want to buy the house after all. Through our realtor we learned that our house was near where his ex-wife and children were going to live, but once his new girlfriend found out, she demanded that he not buy a house so near the ex-wife. All fine and understandable, but not a legal reason to break the contract, so I got to keep the $1,000. He threatened to sue, but after some persuasion, I got him to agree to mediation.

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Work Worth Doing: Alternative Dispute Resolution

By Colleen Byers

It is easy in today’s political and cultural environment to feel overwhelmed and completely helpless to affect any change. Conflict abounds. In a society focused on retributive justice, where traditional litigation approaches are the norm, advocating options for conflict resolution that fall on the alternative dispute resolution spectrum can often feel counter cultural. At times and among certain audiences, suggesting the collaborative law process is perceived as radical. Notwithstanding the inordinate amount of time, energy and effort that John Sarratt and the Board of Directors of the North Carolina Civil Collaborative Law Association (NCCCLA) have spent educating about and advocating for the use of the collaborative law approach in any civil dispute, I am still often on the receiving end of blank stares, quizzical looks, and frowns when I discuss the collaborative law process with other lawyers and clients. When this happens, it is easy to become discouraged, and the lawyerly ability to over analyze kicks into high gear. I worry that other litigators and even clients will perceive me as weak when I suggest alternative dispute resolution options rather than traditional litigation. At times, I wonder whether my zeal for conflict resolution has come on too strong. Then I remember those magical moments that fuel my passion for ADR …

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Employment Litigators as Peacemakers

By Tara Muller

Employment litigators see a broad range of legal disputes, from sexual harassment to discrimination to breach of contract. They valiantly fight for their clients, gain subject matter expertise, and ultimately become trusted advocates in the fight to achieve justice. But even more importantly? From the trenches, they gain invaluable insight into the inner workings of the office, plant, factory, or farm. They see it all—from shoddy workplace policy enforcement to nasty bosses to smoke break brawls. Can those zealous advocates use their unique, birds-eye view of conflict in the workplace to help out before suit is filed? Or will they just be peacemaking themselves out of a job?

Having observed workplace conflict as a litigator and mediator for nearly 20 years, I believe it is possible, and maybe even lucrative, for litigators to advocate for their clients outside the courtroom. As any employment mediator will tell you, most workplace conflict stems from improper risk avoidance techniques. Sure, some recent SCOTUS cases weaken collective bargaining and restrict certain types of lawsuits, but workplace anger nevertheless will continue to boil over until someone addresses the underlying hostility—today’s workers, often for good reason, feel oppressed, ignored, and powerless. Employment litigators empower both workers and employers by providing them a voice—but those litigators need not wait until suit is filed to get involved.

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Prepare (some) for Mediation

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By Paul T. Flick

Mediation is an alternative dispute resolution process used in lieu of formal procedures, where a neutral mediator attempts to help the parties come to a mutually acceptable agreement. The mediator can facilitate negotiations, review positions, exchange offers, point out the best and worst possible outcomes, etc. It is mostly an informal process, but typically follows a general pattern of holding an opening session where all parties and their lawyers are present and then holding separate caucuses.

Lawyers should prepare for mediation ahead of time, but not overdo it. While all mediations are different and rely some on the style and skill of the mediator for a successful mediation, proper preparation by the lawyers for the parties sets the table for a successful, or unsuccessful, mediation.

So, in short, how should a lawyer prepare for mediation?

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What Is Collaborative Practice and What Does It Have To Do With the Practice Of Employment Law?

Woodward,DanaeBy Danae C. Woodward

Collaborative practice is a relatively new alternative dispute resolution process which has been adopted by family law practitioners throughout the United States and in many other countries. Collaborative law practice was developed in 1990 by a Minnesota family law attorney, Stuart Webb, who proposed this new dispute resolution practice to the Honorable A. M. Keith, Justice of the Minnesota Supreme Court. Webb believed that good lawyering, which he defined as “the analytical, reasoned ability to solve problems and generate creative alternatives and create a positive context for settlement” was often missing in early mediation. Webb sought to create a settlement climate replicating the way some of his cases had naturally settled:

We find ourselves in a conference with the opposing counsel, and perhaps the respective clients, where the dynamics were such that in a climate of positive energy, creative alternatives were presented. In that context, everyone contributed to a final settlement that satisfied all concerned—and everyone left the conference feeling high energy, good feelings and satisfaction. More than likely, the possibility for a change in the way the parties related to each other in the future may have greatly increased. As a result, the lawyers may also develop a degree of trust between them that might make future dealings more productive.

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