Brevity, said the Bard, is the soul of wit.

If you seek proof of the truth of that maxim, then look no further than What About Clients?, one of the very best of the legal blogs. Irreverent, edgy, and smart, with a keen international focus, What About Clients? has long made the case that in a flat world, savvy American lawyers eager to retain their competitive edge must look beyond U.S. borders and across the seas for news, ideas, and business.

Practicing what it preaches, WAC? recently assumed a new name (What About Paris?) and a new slogan (”News and ideas on clients, customers, business and law around the globe”). What remains unchanged of course are the crisp writing, dangerously sharp ideas, and the extensive list of international blogs in the site’s sidebars.

“A Sound Mind in a Sound Body” is the theme of the latest issue of The Complete Lawyer, an online magazine covering professional development, quality of life, and career issues for attorneys published by Don Hutcheson. It explores ways to reduce stress; a look at nontraditional careers; and the link between mind and body for better quality of life.

The last issue of The Complete Lawyer introduced “The Human Factor“, a column focusing on ADR from the perspective of four attorneys who mediate - me and three talented colleagues, Stephanie West Allen of Idealawg and Brains on Purpose, Gini Nelson of Engaging Conflicts, and Victoria Pynchon of Settle It Now Negotiation Blog.

In our latest Human Factor column, the four of us describe the different paths that led us from law school to the practice of mediation.

The Complete Lawyer — an online magazine covering professional development, quality of life, and career issues for attorneys published by Don Hutcheson — has added an ADR column, “The Human Factor“.

Written by me and three smart, savvy women I am honored to call my friends — Stephanie West Allen of Idealawg and Brains on Purpose, Gini Nelson of Engaging Conflicts, and Victoria Pynchon of Settle It Now Negotiation Blog — “The Human Factor” seeks to make ADR relevant to the work of lawyers today. The inspiration for the title of our column comes from pioneering legal reformer Dean Roscoe Pound, whose work presaged the rise of the alternative dispute resolution movement:

A century ago, Dean Roscoe Pound exhorted the legal profession to transform its institutions of justice and adjust its principles “to the human conditions they are to govern,” “putting the human factor in the central place.”

Located in different parts of the U.S., each of us offers a unique way of looking at ADR and its connection to law and justice, in particular what that connection means for the human factor — the individuals whose lives the law affects. In our first column, we introduce ourselves to readers and let them know what to expect from future issues.

Besides “The Human Factor”, there’s plenty more worth reading at the latest issue of The Complete Lawyer, which focuses on the question, “What Do Women Lawyers Really Want?” (I’m one, and I’m still not sure myself.) Find out the answers by visiting The Complete Lawyer now.

Richard Susskind, digital technology expert and legal visionary, once said, “The best way to predict the future is to invent it.”

That’s exactly what Charles Brofman did. He invented the future.

Brofman, a former trial lawyer, is the co-founder of Cybersettle, the world’s leading online claim settlement company. Cybersettle makes use of what is known as online dispute resolution (ODR), a kind of dispute resolution process that utilizes digital technology to settle claims quickly and economically.

In 1996, Brofman had the foresight and rare common sense to create Cybersettle. What sparked this vision? A situation familiar to any trial attorney or mediator who has wrestled with a case that just won’t settle:

Cybersettle grew out of a 1995 encounter between seasoned trial attorneys Charles Brofman and James Burchetta who were representing opposing sides in attempting to settle an insurance claim. Jim, who in this case was representing the plaintiff, had demanded tens of thousands of dollars more than the amount Charlie, the defense counsel, was willing to offer. Both parties were well aware of what amount would eventually settle this case, but neither wanted to compromise his bargaining position – so on to court they went.

In the courthouse, they agreed to secretly write down their bottom line numbers and hand them to a court clerk, who was instructed to give them a “thumbs-up” if they were within a few thousand dollars of each other. If the case didn’t settle, the clerk would destroy the papers and never reveal the figures. He flashed a “thumbs-up.” The amounts were within $1,000 of each other. They split the difference and settled the case within minutes.

Cybersettle was thus born of the desire to help lawyers and others accomplish what sometimes can feel like the impossible: get cases to settle fast and fairly.

So, how does Cybersettle work?

Cybersettle utilizes a patented automated, online, double-blind bid dispute resolution system which allows disputants to resolve claims quickly and confidentially. Optional telephone facilitation is also available when necessary to smooth out communication difficulties and keep settlement negotiations on track, or when parties are close and can benefit from the help of a skilled neutral.

The online service generates high-speed settlements by matching offers and demands. Once the process gets underway, disputants have three opportunities or rounds to settle a claim. One demand or offer is entered for each round; Cybersettle instantly compares the demands to the opposition’s corresponding offer. When the offer is greater than or equal to the opposition’s demand, the claim instantly settles.

Who uses Cybersettle? And why?

Cybersettle has many satisfied customers, as its case studies testify, and has assisted in almost 200,000 transactions, representing $1,457,299,751 in settlements to date, an impressive figure.

Among those who use Cybersettle are attorneys and other legal professionals; insurance carriers and claims professionals; third-party administrators and self-insureds; and government, including municipalities.

But why would they use Cybersettle?

New York City has 11.6 million reasons why. That’s the number of dollars the City saved during its first year using Cybersettle. Faced with a backlog of 40,000 cases, the City needed to take drastic steps. The first city to integrate Cybersettle into its settlement process, New York was able to settle 66% of its cases within 30 days, reduce its backlog significantly, and realize significant cost savings.

For its clients, Cybersettle is virtually a no-risk proposition. The double-blind bidding means that parties can submit their walk-away numbers without compromising their position. This means that there are none of the worries associated with making first offers or other pitfalls of face-to-face negotiation. Most importantly, parties don’t pay unless they settle. I’ll say that again. Parties don’t pay unless they settle. What’s not to love about a system like that?

Speed and 24/7 access — much like an ATM or your favorite convenience store — are other qualities that make Cybersettle so appealing. Trained phone facilitators are also available during normal business hours if parties need the extra nudge to cross the finish line.

Curious to find out how it works? You can take Cybersettle for a test drive.

Final thoughts

Incidentally, Brofman’s talent for predicting the future is not limited to digital technology. Not only did he see the future in ODR, but on a phone call with him back in January, he correctly predicted that the New England Patriots would play the New York Giants in the Super Bowl and that the Giants would win. This is one guy who’s skilled at looking ahead.

Interested in finding out more about Cybersettle? Visit Cybersettle’s web site. And if you’d like to learn more about the brave new world of technology-mediated dispute resolution, read “Settling It On the Web“, an article from the ABA Journal which provides an excellent introduction to ODR.

As family lawyer Diana Skaggs recently alerted readers, the nation’s leading divorce lawyers are finding more cases settled before trial. This trend in favor of negotiation over litigation in divorce may in part be attributable to the growing popularity of alternatives such as mediation and collaborative law which emphasize mutual gains, joint problem solving, and better communication between disputants.

In “Lawyers who mediate, not litigate: Collaborative law doesn’t have to be an oxymoron“, a column in today’s Christian Science Monitor, Boston-based collaborative lawyer David Hoffman traces the roots of collaborative law, describes its benefits, and assesses its risks. Its benefits are two-fold: for the clients themselves, who can achieve creative resolutions, as well as for the legal profession itself, since Hoffman sees collaborative law as a way to regain ebbing public confidence. Hoffman does so in the context of the ethics opinion recently issued by the American Bar Association upholding the use of collaborative law agreements by lawyers–an opinion which put to rest concerns among collaborative lawyers raised by a controversial advisory opinion by the Colorado Bar Association which declared collaborative law unethical per se earlier this year.

Although collaborative law — and other nonadversarial processes like mediation — may not be for everyone, many divorcing couples are electing these as a way to avoid the costs — monetary and otherwise — that litigation can produce.

Here in the U.S. this summer’s cable TV lineup includes “Damages“, a new series about, surprise surprise, lawyers. Already viewers have seen one of the principal characters, a scheming and ambitious plaintiff’s lawyer (played by bunny-killing star of “Fatal Attraction” Glenn Close), use deception to trick her opponent into settling a personal injury suit on the courthouse steps, bully her associates, manipulate clients, and arrange to have a witness’s dog killed. And that was just the first two episodes.

Meanwhile, quietly and without fanfare, a portrait of a different kind of lawyer will be revealed–a portrait that comes closer to depicting the work that many lawyers perform, far from the attention of the media and the public’s eye.

On Friday, August 10, 2007, the ABA Section of Dispute Resolution will be honoring The Innocence Project and internationally respected scholar and ADR professional David Sandborg with Lawyer as Problem Solver Awards. This Award, created in 2002, recognizes attorneys for their ability to use their legal skills in creative ways that benefit clients and communities.

This Award reminds all of us of the important contributions that attorneys can make. In fact, the Award honors not only the recipients but “all lawyers who use their legal skills creatively to build positive solutions for their clients and the community as a whole.”

I was struck by the words of last year’s honoree, David Plant. (To read his full remarks, click here and scroll down to the section captioned “More About Us”). He made these observations about the lawyer’s role as problem solver:

…David Berg, in his recent book “The Trial Lawyer - What It Takes To Win”, confesses his fear that the “great war stories” of future generations of trial lawyers will begin, “And then, I looked that mediator in the eyes and I said … .” Tongue in cheek or not, David’s fear is unjustified. Trials will always be necessary. Great trial lawyers will always have great war stories of real trials. Trying lawsuits with uncommon skill will always be a valued calling. But that is not all the profession is about.

From my vantage point, each of us is practicing in order to assist individuals and institutions, in all shapes and sizes, in all colors and hues, in all moods and on all missions, to find workable solutions to vexing problems. To the extent those problems entail conflicts and disputes, the vast majority can best be solved, and will best be solved, by face to face negotiation, candid discussion, and good faith, collaborative and creative exploration of options. In assisting parties in those discussions, and in facilitating those negotiations, lawyers will continue to serve the profession’s highest purpose. The client will rise to the surface as the person or institution of paramount importance…

To insure that we practice the problem-solving aspects of our profession at the highest level, I invite each of us to study Malcolm Gladwell’s book “The Tipping Point”. Then, I invite each of us to commit ourselves to becoming a virus, a virus whose mission is to beget and to propagate an epidemic - better still, a pandemic. We’ll be good viruses. We’ll inspire a healthy pandemic.

We’ll each empower each client -

to take control of that client’s own destiny,
to assess candidly each dispute the client has with another,
to identify honestly the client’s real interests and real needs,
to respect genuinely the other party’s real interests and needs,
to work empathetically with all others concerned to explore options, and to attempt authentically to find a fair and durable solution.

If we dare to practice, to learn and to implement this notion, we each shall have done a good piece of professional work. And our clients will have realized marvelous - even mysterious - benefits.

What can you do to become contagious?

American lawyers by now may be inured to media attacks on the legal profession. We expect it from Fox News. But this week lawyers drew fire from an unexpected source: a National Public Radio broadcast.

On Point, a week-day radio news magazine produced by NPR member station WBUR in Boston, broadcast a show this week titled “Verdict on American Lawyers“. From the show’s description:

America’s legal profession is based on ideals: on standards of education and admission to the practice, ethics regulation, a disregard for commercialism and on working on behalf of the public good. The legal system is rooted in the belief that all should have access to justice. But Yale Law Professor and legal historian, [sic] says it’s not so. The profession is hardly professional anymore. He says lawyers today are out for their own economic self-interest…

Instead of providing what could have been a rich discussion about the present and future of the legal profession, with points and counterpoints from a spectrum of voices, On Point succeeded in reinforcing for its listeners virtually every negative stereotype that exists about American lawyers today. It perpetuated the myth that all lawyers work for large firms on behalf of shady corporate interests and are members of an Ivy-educated elite motivated solely by self-interest and greed.

The show’s greatest defect was its failure to accurately and fully depict today’s legal profession in all its diversity. This one-sided portrayal of a legal profession in moral decline ignored the numerous efforts that have contributed to the improvement of law and the institutions that serve it. And it disregarded the movements within the profession that seek to deliver justice better and provide effective mechanisms for the resolution of disputes.

There are plenty of attorneys today who are trailblazers, breaking new ground through movements like collaborative law and restorative justice. These attorneys are bold architects of new ways of serving the public and justice better.

And how can a show that purported to examine the legal profession and access to justice fail to discuss one of the most important revolutions in the courts and in the practice of law: the widespread availability and institutionalization of alternative dispute resolution?

As an attorney who no longer practices traditional law but has spent the past decade as a mediator helping people resolve disputes both within and outside of the legal system, I have many colleagues in the bar who are committed to these kind of innovations in the practice of law and the resolution of disputes. Many are outspoken advocates of these new ways of thinking and work to transform and reinvigorate the practice of law.

Many of them strive to illuminate for the legal profession as well as the public the art and creativity within the practice of law and to help attorneys reclaim the dignity and meaning in what is still an honorable profession.

You may hear “Verdict on American Lawyers” in a number of formats at the On Point web site and judge for yourself.

Collaborative law, a process in which lawyers and their clients contractually agree to pursue non-adversarial means of resolving disputes and reaching agreement without going to court, has become an increasingly popular way to address divorce, family, and other matters. It is designed to utilize and foster mutual respect, joint problem solving, open communication, and interest-based negotiation. If the process fails and the client wishes to proceed to court, the lawyer must withdraw and the client must choose another lawyer.

So, what’s not to like about a no-court alternative to litigation? Plenty, according to the Colorado Bar Association’s Ethics Committee, which has issued an advisory opinion declaring collaborative law to be unethical per se–an opinion that has stirred swift reaction from ADR bloggers and others. Covering the story so far are Gini Nelson, John Crouch, Stephanie West Allen, Pauline Tesler, Alan Childress, Robert Ambrogi, and David Giacalone.

According to the Committee:

It is the opinion of this Committee that the practice of Collaborative Law violates Rule 1.7(b) of Colorado Rules of Professional Conduct insofar as a lawyer participating in the process enters into a contractual agreement with the opposing party requiring the lawyer to withdraw in the event that the process is unsuccessful. The Committee further concludes that pursuant to Colo.RPC 1.7(c) the client’s consent to waive this conflict cannot be validly obtained.

Pauline Tesler, an expert in collaborative law, says there is little to fear from this opinion: “It is non-binding, even in Colorado, and prevents no lawyer or client even in Colorado from electing collaborative legal representation. The opinion stands alone in its obvious hostility to collaborative legal practice–and in its faulty reasoning. All other ethics opinions to date have supported the informed choice of collaborative law.”

Nonetheless, this opinion should still trouble us, since it comes from a prominent voice in the legal community. And this is not the first time such arguments have been made. We should moreover consider the effect an opinion like this can have in discouraging creativity and innovation in the practice of law.

The authors of this opinion seem to have forgotten that the Rules of Professional Conduct actually encourage lawyers to be driving forces for positive change in the profession. Consider these words from the preamble to the Rules of Professional Conduct (Colorado’s, but also those from the ABA’s own Model Rules):

As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education.

along with these (again, Colorado’s, although not in the current version of the ABA Model Rules):

The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and his capacity through reason for enlightened self-government.

Which seems to me what collaborative law is all about: the dignity of the individual. We need more of that in the law, not less–despite what the Colorado Bar Association’s Ethics Committee may think.

As an attorney and as a mediator I straddle two worlds. People have often asked me if reconciling these two professional selves is difficult, expecting that the gravitational pull that each exerts must draw me in opposite directions. It does not.

Although one field goes so far as to frame itself as an alternative to the other, there is in fact much overlap and common ground between these two seemingly different fields.

There is much that each can learn from the other. Knowledge of one provides a deeper appreciation for the traditions and qualities of the other.

The problem though is that all too often attorneys and mediators view each other as rivals, not partners, in dispute resolution. There’s plenty of mutual distrust and even open hostility to go around. What’s interesting is that because I’ve got credentials in both worlds, each side trusts me enough to tell me what they think about the other.

Among the concerns that attorneys have about mediators are:

• Mediators will take clients and business away from lawyers.
• Mediators who aren’t lawyers aren’t competent to mediate disputes involving legal issues.
• Mediators who are lawyers want to play judge and make lawyers look bad in front of their clients.
• Mediators are a waste of time and money–all they want to do is get everyone to get in touch with their feelings, hold hands, and sing kumbaya.
• Mediation is the handmaiden of tort reform.

Among the concerns that mediators have about attorneys are:

• Lawyers want to put mediators–especially mediators who aren’t lawyers–out of business.
• All lawyers care about is billable hours instead of helping clients achieve the best outcome possible in the client’s interest, not the lawyer’s.
• Because lawyers are adversarial, lawyers will make any bad dispute worse, destroying relationships and dissipating client assets.
• Lawyers lack vision: the only outcomes they can see are binary–win/lose, black/white, good/bad.
• Litigation is an (un)necessary evil.

Beginning next week I will begin a series of articles examining these concerns. My goal is threefold: to help each field better understand and appreciate the other, challenge and debunk some urban legends, and to rehabilitate lawyers and mediators in each other’s eyes.

I propose, in effect, to mediate between mediation and the law.

* * * * *
Update: As the series unfolds, the links to each article will be posted below.

Part 1: Valuing the rule of law
Part 2: What mediators can do for lawyers
Part 3: What lawyers can do for mediators

The Internet is a place of continuous discovery. At once marketplace, library, and public square, its wealth of voices, viewpoints, and ideas never ceases to delight and enlighten me.

Although the pleasures of new discoveries are great, there are places on the web that I find myself returning to often, just as any of us do in the real world we inhabit. One of these for me is the blog Idealawg, published by Stephanie West Allen. With an original voice, this blog explores and reveals the art within the practice of law. It skillfully traverses ground as well that mediators will feel at home in–idea productivity, restorative justice, conflict resolution, client relations, and, of course, mediation.

This fall Stephanie introduced a new feature, Legal Highlights–interviews with members of the legal profession aimed at putting the focus on what’s right and what’s working with the legal profession and justice. As Stephanie explains:

One of my goals with Legal Highlights is to balance out, perhaps round out, all that we read and hear about what’s wrong with the legal profession and system. With the Highlights, let’s focus on the uplifting, the affirmative, the effective, the professional, the gratified, the decent, the good.

Stephanie honored me recently by inviting me to participate in a Legal Highlights interview–the fourth one in this series. You can read it here.

(Thank you, Stephanie–and congratulations on creating such a fine resource for dispute resolution professionals.)

The latest edition of the Complete Lawyer, an online magazine that examines “best practices in personal and professional development that impact every lawyer’s success and satisfaction”, asks, “Are You a Healthy Lawyer?”

Among the excellent collection of essays that explore this question is an interview with ADR pioneer Leonard Riskin, “How Meditation, Yes Meditation, Can Improve Your Performance And Enhance Your Satisfaction With Work“.

Mediators and negotiators will want to see an earlier edition of the Complete Lawyer, which focuses on “Resolving Conflict“, and includes articles like “How to Master Crucial Conversations” and “The Human Side of Negotiation“.

(My deepest appreciation to my friend Stephanie West Allen, author of the weblog Idealawg, for introducing me to the Complete Lawyer and for so kindly sharing with me Len Riskin’s interview. )

In “Consequences of Power,” an article to appear in the upcoming Harvard Negotiation Law Review, Vol. XII, 2007, and available as a PDF download at the Social Science Research Network, Tamara Relis, a postdoctoral research fellow at Columbia Law School and the London School of Economics Department of Law, reports on the results of a survey and analysis of litigation-track mediation in medical malpractice cases.

Relis finds evidentiary support for the value of bringing plaintiffs and defendants face to face, despite the efforts of counsel to keep them apart. Her findings reveal the disconnect between attorneys’ objectives and those of their clients and shows that plaintiffs and defendants are more closely aligned than one might suppose, seeking similar outcomes and desiring above all the opportunity to communicate. And Relis sees ample evidence for what mediators have long known from experience, namely that mediation meets needs beyond those which the legal system can remedy, something other than compensation or a favorable verdict. Mediation provides what Relis calls “human benefits”–understanding, forgiveness, empowerment, or merely the opportunity to be heard.

For the abstract and a link to the download in PDF, please visit the Social Science Research Network web site.

Technorati tags: mediation, law

Earlier this year, I linked to a Times Online article by legal futurist Richard Susskind with his predictions about the future of legal practice and dispute resolution.

For those eager to learn more about what the future holds, via Slaw, the cooperative Canadian legal research and IT weblog, comes news that “The Next Ten Years“, Richard Susskind’s Society for Computers & Law 2006 Lecture, is available now both in podcast and in edited transcript form. Susskind sets forth his vision of the coming transformation in the nature of legal service, legal education, and dispute resolution that the future holds.

Not only lawyers but alternative dispute resolution professionals will want to pay close attention to Susskind’s views of technology’s influence on the evolution of the practice of law and the resolution of disputes, together with his prediction that client demand will shift focus from dispute resolution to dispute prevention.

And all of us will want to heed his reminder that “The best way to predict the future is to invent it”.

For more information on legal futurism, please see “The future is now: a strategic approach to dispute resolution and the law“, an article which appeared in November on this blog.

Technorati tags: alternative dispute resolution, Culture and Society, Law, Lawyers, legal futurism, mediation, ODR, online dispute resolution, technology

Last night an esteemed colleague kindly emailed me the following quote, attributed to Sandra Day O’Connor:

The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.

I think that many of us–alternative dispute resolution professionals, lawyers, and ordinary citizens–would wholeheartedly agree.

Justice O’Connor’s words acquire special meaning just one day after Harvard Law Professor Frank Sander, a pioneering leader of the modern alternative dispute resolution movement, was honored for his numerous contributions to the ADR field.

Thirty years ago, Chief Justice Warren Burger invited Professor Sander to present a paper at the Roscoe Pound Conference of 1976, a historic gathering of legal scholars and jurists brought together to discuss ways to address popular dissatisfaction with the American legal system and reform the administration and delivery of justice. Sander’s paper, “The Pound Conference: Perspectives on Justice in the Future“, profoundly influenced and transformed both ADR and the American legal system. It has in many ways acquired the status of a sacred text for ADR professionals; it is at once history and cultural narrative.

Sander reminded conference participants of the limitations of traditional litigation with its “use of a third party with coercive power, the usually ‘win or lose’ nature of the decision, and the tendency of the decision to focus narrowly on the immediate matter in issue as distinguished from a concern with the underlying relationship between the parties.” He urged conference participants to envision alternatives, a “rich variety of different processes, which, I would submit, singly or in combination, may provide far more ‘effective’ conflict resolution.” And he reminded them of “the central quality of mediation”, namely “its capacity to reorient the parties toward each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one another.”

Sander was one of those early pioneers who blazed rocky trails that 30 years later are now well-traveled roads. The institutionalization of ADR is virtually complete. No longer novel and revolutionary, ADR has become commonplace, woven tightly into the fabric of legal, commercial, workplace, community, academic, and civic interactions.

This large-scale integration of ADR, however, as largely positive as it has been, has unfortunately produced problems of its own.

In an age of tort reform and mandatory arbitration clauses, ADR has been exploited as a means of concealing civil wrong or criminal misconduct or preventing the powerless from seeking justice against the powerful, as this recent article from NorthJersey.com reminded me. (For a full analysis of this issue, please see this post from March 2005, “The company we keep: ADR, tort reform, and the erosion of justice” (selected last month as a Gather.com Editor’s Pick), issued as a call to arms to my profession and a rebuke to those few misguided mediators who all too eagerly denounce litigation as an unnecessary evil).

Thirty years after the groundbreaking Pound Conference is a good time for perspective taking as the ADR field advances into the 21st century. It’s an opportunity to remember our roots.

ADR was founded on notions of greater access to justice for all, improved satisfaction with dispute resolution processes, and meaningful choices for resolving disputes in mutually satisfying ways. Sander and those early pioneers envisioned a multi-door courthouse, with doors swinging wide open to a broad range of dispute resolution processes, where disputes could be efficiently addressed through the mechanism best suited for the parties and the issues involved.

Sanders emphasized the need “to reserve the courts for those activities for which they are best suited and to avoid swamping and paralyzing them with cases that do not require their unique capabilities”. At the same time, Sander recognized the legitimacy of the “need to retain the courts as the ultimate agency capable of effectively protecting the rights of the disadvantaged”.

These should remain our bedrock principles. Justice, like ADR, must remain accessible, to the powerless and the powerful alike. Otherwise alternative dispute resolution ceases to be an alternative at all. As ADR professionals, let us work to keep the multiple doors wide open–before they slam shut in the faces of those who are most vulnerable.

Technorati tags: ADR, alternative dispute resolution, Law, Mediation

Just a few weeks ago on a chilly but gloriously sunlit January morning I attended the wedding of two dear friends at our local town hall. What made this particular wedding so unique is that the happy couple had been together for thirty-eight years before getting married. This was also the first marriage between two men to be performed in this small Massachusetts town.

The twenty of us who were present were deeply moved by this ceremony which honored almost forty years of devotion, commitment, and love between two life partners. Many other gay couples in Massachusetts have taken the same step since the Commonwealth legalized gay marriage: by conservative estimates, over 4,000 gay marriage certificates were issued in Massachusetts during 2004.

But just a few days ago I learned that another gay couple has regretfully chosen to end their months-old marriage. And others, too, have filed for divorce here in the Commonwealth.

These two very different cases illustrate what we know from experience: many marriages and relationships endure, but sadly they can also end in separation or divorce.

Divorce, a legal process, can easily become adversarial, and lead to increased stress and mental trauma. It doesn’t have to be that way. There are resources and options available for all couples, heterosexual and gay, for support throughout separation and divorce.

There are two processes in particular which can make a difference for couples going through a divorce: mediation and collaborative law.

Mediation provides a low-cost and confidential alternative to litigation. In mediation, a third party assists a divorcing couple have a constructive conversation about the issues they need to address as part of the process of obtaining a legal divorce. Those issues may include: division of assets and debts; spousal support; issues relating to children, including visitation and custody; and any issues that are unique to the relationship.

Mediation helps people talk through the issues that affect them and their families and reach agreements that are fair, workable, and make sense for them. Gay couples contemplating divorce may wish to think about working with a mediator who has experience with and is sensitive to issues affecting the gay community. The important thing is to find a mediator that you feel comfortable working with.

For information on mediation, visit Mediate.com or the web site for the Association for Conflict Resolution. Residents of Massachusetts may be interested in exploring the web site for the Massachusetts Council on Family Mediation.

Collaborative law is another option available to divorcing couples, which can be used on its own or in conjunction with mediation.

According to the web site for the Massachusetts Collaborative Law Council, the goal of collaborative law is “to protect the privacy and dignity of all involved”:

We acknowledge that the essence of “Collaborative Law” is the shared belief by participants that it is in the best interests of parties and their families in typical Family Law matters to commit themselves to avoiding litigation.We therefore adopt this conflict resolution process, which does not rely on a Court-imposed resolution, but relies on an atmosphere of honesty, cooperation, integrity and professionalism, geared toward ensuring the future well-being of the family.

Our goal is to eliminate the negative economic, social, and emotional consequences of protracted litigation to the participants and their families.

It requires the free and open exchange of information, and envisions working together with other experts, including psychologists, financial experts, and others, and sharing the recommendations and work product of those experts.

For more information about collaborative law, you can also visit the web site for the International Academy for Collaborative Professionals.