Comparing Collaborative Practice, Mediation, and

LitigationStevens County Bar Association CLE: Colville, WA

February 9, 2012© Pruitt-Hamm Law & Mediation Services, PS

What is Collaborative Practice (CP)?

Collaborative Practice is fundamentally a new model and set of rules about how to solve legal disputes. Instead of racing to court, Collaborative participants agree not to go to court. Instead of spending thousands of dollars answering nearly irrelevant questions, Collaborative participants agree to provide each other with all relevant information. Instead of focusing on what is wrong with the other person, Collaborative attorneys and participants work together as a team to resolve their differences. In traditional litigation, each side often hires expensive experts who come up with opposite opinions. In the Collaborative approach, all experts work for both participants. Traditionally, the court and attorneys determine when progress occurs. In Collaborative Practice, you control the pace. Instead of having your court file open to anyone with access to the internet, most if not all of your personal information is kept private in Collaborative Practice.

The ADR continuum

Where do Collaborative Practice and Mediation fit in to the range of dispute resolution services called Alternative Dispute Resolution (ADR)?

ADR Continuum CBA ADR Ctee.

How does CP Compare to Mediation & Litigation

Mediation research Business Disputes CPR Institute For Dispute Resolution "Mediation success rates for business disputes, i.e. cases

that result in settlement during or shortly after the mediation, quoted by CPR and other leading ADR organizations, generally are in the 80%-90% range." - Kaskell, Peter H. "Is Your Infringement Dispute Suitable for Mediation?" (Alternatives March 2002)

4,000 operating companies have signed CPR's Corporate Policy Statement on ADR.

1,500 law firms have signed CPR's Law Firm Policy Statement on ADR.

Almost all federal and state courts now use some form of ADR.

EmploymentGibbs, David H. "After Waffle House, Arbitration Gets 'New Trilogy' of Employment Law." Alternatives February 2002."The court notes that out of about 80,000 employment discrimination charges filed in 2000 with the EEOC [Equal Employment Opportunity Commission], the agency found reasonable cause in only 8,248 [10.3%]. In 2000, the EEOC filed 291 lawsuits and intervened in 111 others.""The number of employment discrimination cases tripled during the last decade.""The average litigation cost for a single plaintiff case is estimated at more than $93,000 and that of a class action $462,000."Phillips, F. Peter. "Current Trends in Management and Resolution of Employment Disputes." For the Defense July 2002.Discusses the classic three-stepped ADR program and its modifications (1. Local Management Review, 2. Nonbinding Mediation, and 3. Binding Arbitration) as used in companies such as Anheuser-Busch, United Parcel Service (UPS), UBS PaineWebber, Texaco, and GE Corporate."Nearly all disputes submitted to systematic employment dispute resolution programs are resolved by agreement, prior to the arbitration stage."

Halliburton, Johnson & Johnson: fewer than 2% of disputes proceed to the third stage, arbitration.GE: in 1998-9, few disputes went to formal mediation and only one went to arbitration.U.S. Air Force: in 2000, [2,728] disputes were subject to ADR; 79% were resolved before arbitration.U.S. Postal Service (mediation-only): since 1997, formal complaints to the EEO [Equal Employment Opportunities Trust] have decreased by 26%, 76% of the claims were resolved or not pursued, and "participant satisfaction on a variety of parameters measured, on average, substantially above 90%."EEOC: "of 7,490 charges mediated during FY99, 5,254 (70%) were successfully concluded."

Trial And Civil Courts"Report to the Legislature on the Impact of Alternative Dispute Resolution on the Massachusetts Trial Court." Prepared by the Supreme Judicial Court/Trial Court Standing Committee on Dispute Resolution. February 2, 1998.Middlesex Multi-Door Courthouse (MMDC), 1992. Study compared the success of cases from a control group (traditional litigation) and experimental group (Multi-Door: case evaluation, mediation, standard arbitration, complex case management, summary jury trial, mini trial) on a variety of dimensions. Cases were randomly assigned to control or experimental group.

Higher satisfaction rate for MMDC participants in terms of case processing time, litigant and court costs, and resource requirements.Over 25 more attorney hours were spent on control group than MMDC cases. One-third (33%) more motions were filed in control group cases; more documents per case were processed for control group cases.

Massachusetts Motor Vehicle Tort Litigation Case Evaluation Program, 1992. Study assessed degree of user satisfaction, amount of attorney time spent on case, and time to proc ess the case in comparison to a control group (traditional litigation). Cases were randomly assigned to control or experimental group.

Average scores for user satisfaction were higher for the experimental group. "In terms of median time from filing to "disposition", experimental cases had median time more than thirty (30) days shorter than control group cases."

Divorce and Family Law

The Journal of Consulting and Clinical Psychology (2001, Vol. 69, No.2, 323-332) has reported a study on families who had been randomly assigned to mediate or litigate their child custody disputes. In comparison with parents who litigated custody, parents not living with their children who mediated custody maintained more contact with their children and had a greater influence in co-parenting 12 years later. The 12-year follow-up data indicate that, even in contested cases, mediation encourages both parents to remain involved in their children's lives after divorce without increasing co-parenting conflict.

In a study by Jessica Pearson and Nancy Thoennes, “Divorce Mediation: Reflections on a Decade of Research, published in the book “Mediation Research” (Kenneth Kressel and Dean G. Pruitt eds., 1989), the authors reported the following:

Disputants consider mediation less damaging to relationships with former spouses than traditional courtroom proceedings.

Voluntary participation in mediation does not appear to produce higher settlement rates than mandated participation in mediation.

Users find that mediation identifies the real issues in a dispute.

Users find that mediation is less rushed and less “superficial” than courtroom proceedings.

Of those who reached an agreement in mediation, two-thirds of both men and women agreed that the spousal support was fair, and more than two-thirds of both men and women were satisfied with the division of property.

In a study by Michael Benjamin and Howard Irving, “Research in Family Mediation, Review and Implications,” published in 13 Mediation Quarterly 53 (1995) and research by Joan Kelly, “A Decade of Divorce Mediation Research,” published in 34 Family and Conciliation Courts Review 373 (1996), the authors found the following:

Mediation produces agreement in 50 to 80 percent of cases.Researchers have not noted a statistical difference in the treatment of child support payments, although mediating fathers are more likely to agree to pay for “extras” for their children and are more likely to agree to help with college expenses.

In one study, couples in the adversarial sample reported spending 134% more (more than twice as much) for their divorces than those in the mediation sample.

Collaborative Research

Boston Law Collaborative Study of ~ 200 cases:

-$72,000 Litigation with Trial -$35,000 Litigation with Settlement -$25,000 Collaborative Divorce -$8,000 Mediation with Settlement

Further research at: https://www.collaborativepractice.com/_t.asp?T=Survey

Dispute Resolution Options Of divorcing couples who chose to use Collaborative

Practice, the following show what percentage-

Knew of the option/Considered: the following dispute resolution options

95%/51% -Litigation

85%/40%- Mediation

41%/22%- Self-divorce

Why do CP disputants choose CP?

Better outcome

Focus on Client's priorities

Less confrontational

More respectful

More Client control over outcome

Why CP v Mediation?

- Needed legal representation

- Client's spouses wanted CP

Cost

Was CP considered by CP disputants to be expensive or not for the outcome?

81% reasonable- Disputant’s own atty.

79% reasonable for MHP's

81% reasonable for FP's

CP Compared with Litigation

Settlement:

CP: 90% settled; 75% of all disputants were somewhat or extremely satisfied with CP overall

Litigation: 30% of all "winners" were satisfied; 70% of "winners" not

CP v Litigation: An Example

Schedule I- Community AssetsDisposition/Value Proposed by:

Item H W H W H WReal Property

Total Assets $190,654 $190,701 $163,165 $104,430 ($27,489) ($86,271)

Schedule VI- SummaryCommunity Property

Disposition/Value Proposed by: Wife-CPH W

ItemCombined SP & CP Equity $190,677 $190,677 $67,130 $200,465 ($123,548) $9,787Spousal Maintenance Award ($150,000) $150,000 ($135,000) $135,000 $15,000 ($15,000)Post Secondary Award ($200,000) $0 ($175,000) ($25,000) $25,000 ($25,000)Post DOS Reconciliation $11,270 ($11,270) $0 ($11,270) $11,270GRAND TOTAL ($148,053) $329,407 ($242,870) $310,465 ($94,818) ($18,943)Litigation Costs $5,000 $5,000 ($23,000) ($32,000) ($28,000) ($37,000)TOTAL STLMT. & TRANSACTION COSTS ($143,053) $334,407 ($265,870) $278,465 ($122,818) ($55,943)

Draft CL Stlmt. Trial Result Difference

How does Collaborative Practice work?

Mediation & CP:Similar Dispute Resolution Processes

Facilitated Problem-Solving Mutual Decision-Making Processes

Flow Chart of the Mediation Process

Flow Chart of the Collaborative Practice Process

Tesler's Simplified Flow Chart

How do I use mediation skills in the collaborative process?

Basic Communication & Listening Skills Basic Facilitation Skills

Basic Communication & Listening Skills Paraphrasing; Mirroring; Reframing Listening for Feelings Encouraging; Drawing People Out;

Participation Opportunity Equalizing Intentional Silence (Think "Groan Zone") Mutualizing, Normalizing; etc "Switch Moccasins" tools (Empathy tools)

The “Groan Zone”

Basic Facilitation Skills Task & Morale (Substantive/Psychological)

Functions Agenda: Creation & Management; Getting

Consent; Issue Reframing Translating Positions into Interests: What Want,

Why Option Generation: Brainstorms; Listing Ideas;

Anonymous Written Ideas (Groupware) Post-Brainstorm Processing: Prioritizing (Straw

Voting); Taking Turns; Merging & Categorizing

Discussion & Evaluation: Why/What/How- Positions to Interests to New Ideas; Groan Zone

Recording: Summarizing; Note-taking; Digital Recording

Take Away Lesson: Don't fail to have a Final Mtg.; get the agmt. & consent of the parties "on the record“

2010 Div. III case re mediation agmt. w/o writing & w/ admission enforced as CR2A stipulation/Agmt.◦ In re the Matter of the Parentage of: PIPER ALDEN, ELLEOT ALDEN,

SARA BURNS, Appellant,and RYAN HODGE, Respondent. No. 28638-0-III Court of Appeals of Washington, Division 3. (December 2010)

◦ In re Marriage of Ferree, 71 Wash.App. 35, 856 P.2d 706Wash.App. Div. 2,1993.

Between Meetings: Plan the Work and Work the Plan; Setting Next Mtgs., Agenda Topics & Homework

How do I work with another Collaborative Practitioner to facilitate interest-based negotiating between parties?

Videos on CP

YouTube:◦ Findlaw: CP & Mediation: http://www.youtube.com/watch?

v=Vo3bhglXkKs&feature=related 2:04

◦ Today Show on CP: http://www.youtube.com/watch?v=R61fCemn9Ls&feature=related 7:22

◦ Seattle CP Interview: http://www.youtube.com/watch?v=_8Wk_SGu15s&feature=related 9:33

IACP Video w/ Webb & Ousky http://www.collaborativepractice.com/_t.asp?T=Videos 20:00