Recognizing now more than ever a growing need for dispute resolution

By Michael Zeytoonian posted Tue December 05,2017 02:52 PM


As printed in Massachusetts Lawyers Weekly on December 4, 2017

Over the week of October 16-20, 2017, lawyers and dispute resolution professional celebrated national Conflict Resolution Week.  The Massachusetts Bar Association's Dispute Resolution Section presented five events with different focuses in different parts of the state.  More than 400 people attended, including judges, lawyers, mediators, arbitrators, students, parents, teachers, coaches, special masters, and interested members of the public.  Governor Charlie Baker issued a Proclamation recognizing October 19 as Dispute Resolution Day in the Commonwealth.

The week's events focused on court-connected, community, and private mediation; collaborative law; youth (middle school and high school) peer mediation; direct conflict negotiations between nations and ethnic groups; designed claims programs, such as the September 11th Victim Compensation Fund (VCF) and the One Fund Boston (after the Boston Marathon bombing); and restorative justice.

Highlights ranged from middle school students perfectly explaining what mediation is, to keynote speaker Kenneth Feinberg noting that Massachusetts was a true pioneer in conflict resolution, and that programs such as the VCF exemplified how processes could be specifically designed to effectively respond to unique situations.

There were many common threads and takeaways in these DR presentations:

  • The use of a wide variety of DR processes is growing as, more than ever, people seek out better ways to resolve conflicts, steadily diminishing the number of cases defaulting to litigation.
  • People are increasingly seeking options that re-connect and restore healthy relationships and environments, rather than adversarial approaches that divide and separate.
  • Many ways to resolve conflicts are being offered by courts, private DR professionals, community mediation programs, and designed by organizations and companies as internal DR programs.
  • Judges, lawyers, civic and business leaders are now actively seeking more education and information about the different types and uses of DR.
  • It was inspiring and energizing to hear about young people being trained in, and embracing, the use of peer mediation and restorative justice to productively address their conflicts.
  • It was an eye-opener to learn about people from some of the most troubled historical conflict zones - such as Israel, Ireland, Kosovo, and other places - who are willing to travel to other cities in conflict and share about the efforts they have made to resolve conflicts and restore relationships.

In the early 1980's, mediation was introduced as a new option for resolving disputes, which kept the decision-making and final resolutions in the hands of people in the dispute.  It was hardly embraced then; most rejected it as something that would never work.  Now, 40 years later, mediation is the most frequently used type of DR, far surpassing trials and arbitration.

In 1990, one lawyer in Minnesota walked away from litigation because of how negatively it impacted clients, families, and lawyers alike.  He introduced a process called collaborative law and suggested it to a small group of judges and lawyers.  Collaborative law is a process in which lawyers and clients agree not to litigate and, instead, use a structured negotiation process in which parties and lawyers collaborate by design to reach a good resolution.  Today, the use of collaborative law is growing steadily and is practiced in 24 nations around the world.

97% of the cases that are filed in courts today are settled; less than 3% go to trial.  Massachusetts state trial courts welcome the use of DR at all levels, and court-connected mediation programs are offered in most district courts.  Massachusetts federal courts require good faith consideration of DR at the outset of cases filed as an alternative to continuing litigation and/or going to trial for those cases for which DR is appropriate, and provide mediators for that purpose.

In an increasingly polarized, partisan, and divided society, effective dispute resolution is needed more than ever.  DR works efficiently and creatively to solve legal problems and maintain healthy business, organizational, civic and family relationships.  The trend toward more DR is refreshing and transformative, connecting and bring people together rather than dividing and driving people apart.  It is working to empower people to work together to resolve their own disputes and restore normalcy and peace of mind where there is conflict.

In our roles as good citizens, attorneys and neutrals, we honor our commitment to resolution of all types and embrace our responsibility to evolve DR processes, so as to create a better promise for tomorrow.