The Uniform Law Commission has removed the resolution regarding the Uniform Collaborative Law Act (UCLA) from consideration at the ABA House of Delegates Mid-year meeting. You can hear Robert Stein, ULC’s delegate, on that decision here (choose Day 1, PM, Report 111C).

I think this is quite appropriate. A lot of good feedback was generated by the resolution, feedback which indicates there could be some revisiting of the UCLA by the drafting committee. But more importantly, there is now more opportunity for discussion and dialog about what Collaborative Law Practice is and how it works.

We’ll see if the UCLA drafting committee will be reconvening. But whether they do or not, there’s still a lot of good work that the rest of us can be doing.

Most of the comments raising sincere concern I’ve heard were not really directed at the UCLA, but at the practice of Collaborative Law more generally. So now there is time and opportunity for various stakeholders to have those discussions, to inform, to share ideas, and to see how the concerns might be addressed.

We should all hope to live long enough to have stuff happen.  And I’ve had enough of a web-presence now to have stuff happen — my website got hacked.

Thanks to the eagle-eye of my technical advisor, Marsha Perry, it was spotted quickly, no great damage was done and things were fixed and back up in a jiffy.

All of my recent posts that were removed will be reposted.  And interspersed with new ones.  So watch this space!

Here’s an issue that can keep mediators talking into the wee hours: when to use joint meetings, and when to use private meetings?

Some people hold the preconceived notion that their approach — private or joint — is always better, all the time, for all people and in all cases.

These preconceived notions come from the real experience mediators and attorneys have had. Litigators and litigation-context mediators know that there are things that they can do in private meetings that they can’t do in joint meetings. Other mediators know that there are things that they can do in joint meetings that they can’t do in private meetings.

Some have had bad experiences with joint sessions. Some have had bad experiences with private sessions.

Why is that?

These different approaches have been used in two separate contexts, of course. Private meetings tend to be used more in litigation-context mediations. Joint meetings tend to be used more in mediations outside litigation. In each context, the professionals have been better skilled at the approach they use more, and it proves more helpful. And in each context, the other approach has not been used as often, the professionals aren’t very good at it, and the few times they try it, things don’t go so well.

Not all mediators and lawyers have the skill-set to work effectively in private meetings.  And not all mediators and lawyers have the skill-set to work effectively in joint meetings.

So it’s no wonder some are better with one approach more than the other, they get better results with it, they have their preferences for it over the other. It’s not surprising that these preferences turn into pre-conceived notions about what’s best, or even into beliefs about what is right and what is wrong.

I encourage mediators and lawyers to reflect on their experiences with joint/private meetings and what pre-conceived notions they have formed about them. And to learn more about and gain some skill in using the approach they’re less familiar with. Then they’ll be in a better position to say – in each particular situation, with that particular mix of people and the professionals’ skill-sets – which approach might be the one to use.

A bar association group with which I’m involved was called the “Dispute Resolution Section” for a time.  It recently renamed itself the “Alternative Dispute Resolution Section,” as it had been called when it began years ago.  ADR Section becomes DR Section becomes ADR Section again.

How come?  What do we mean by “alternative?”  Why is it important for some to call it that?  Why is it important for some not to call it that?

Within the community of those who work in processes other than litigation, it’s now more commonly called just “dispute resolution.”  (Though some groups are avoid changing their acronyms by changing the “alternative” to “appropriate.”)  It is more often within the legal community that we hear it called “alternative” dispute resolution.

The concept of an alternative only makes sense within the context of being an alternative to something else.  Here, that referent is unstated, but implied and clear.  It’s pretty well understood that when we hear “alternative” we know what’s meant is “alternative to litigation.”

Litigation is the dominant paradigm in our society for approaching disputes.  It’s not the most used, of course, because it’s priced beyond the means of so many people.  But it is what most of us think of first when we think of conflict.

The term “Alternative Dispute Resolution” stands firmly in a narrative viewpoint centered on litigation, law and lawyers.

Yet to describe the full range of all the methods that human beings can use to approach their disputes as  “alternatives” to litigation seems to be missing something important.  It glosses over the essential characteristics of both litigation and its “alternatives.”

To get at those essential characteristics just stand the concept on its head.  I will at times provocatively describe litigation and the legal system as ADR — as the alternative to people working out their resolutions to disputes themselves.

Maybe, at this point, still, some 30+ years into the development of ADR, the easiest way we can describe what we do is that it is “not-litigation.”  But being fixed in a particular narrative vantage point limits our thinking.  It’s like calling the ocean “not-boat” or the vast reaches of the cosmos “not-earth.”

What is the essential nature of litigation?  What is the essential nature of each of the other dispute resolution approaches?

Awhile back I asked people in a survey about how they describe what’s happening when they’re in real disagreements. For those of you reading this because you took it, thank you so much!

If you haven’t taken it, I’ll leave it up for awhile. Here’s the link: http://www.surveymonkey.com/s.aspx?sm=HWpdZ_2fdo_2fpeyVctrGSBE9A_3d_3d.

The results are in the post below. But first, why a survey? Why ask people how they think about their disagreements?

Because lawyers talk funny. Everyone knows that. But lawyer-talk is part of the popular culture through TV and literature, so we sort of understand them.

Dispute resolution professionals talk even funnier. And the general public doesn’t have much exposure to these people. They sound just plain weird. As Steve Martin once said about the French, “it’s like they have a different word for everything!”

I did this survey to reground myself in the language of real people, as they really are, when they are in the middle of real disputes.

I really, really need to understand and to speak the language of real people in a way that is real to them when I’m marketing my services. I’m not there to see how my words are working and how people react to them. I can’t see it when they read my website and wince. I need the kind of information this survey provides to be able to describe what I do, how I do it, and when I might be able to help.

So – to the heart of it – what did we learn? Keep reading or click here …

Here are the results of a survey I took of real people talking about their real disagreements.

I asked you to think back on a serious event, which you would have called a Disagreement (50.0%), Conflict (48.2%), or Difference of Opinion (48.2%), Strained Relationship (41.1%), Confrontation (39.3%), Issue (37.5) or Dispute (33.9%). What was happening with you during that time is you felt Frustrated (80.7%), Annoyed (50.9%), Angry (42.1%), Unhappy (42.1%), Upset (40.4%), and Unfairly treated (38.6%).

What you wanted to have happen was A solution (54.4%), A resolution (49.1%), An agreement (47.4%), Resolution (47.40%), A sustainable solution (45.6%) and To be understood (45.6%). What you didn’t want is Money (3.5%), To cause the other grief (1.8%), A public statement (1.8%), Attorneys’ fees (1.8%), Recompense (0.0%), To ignore it (0.0%), or To sue (0.0%).

What you wanted from an outside person were Suggestions (59.3%), Solutions (53.7%), Assistance (53.7%), Advice (51.9%), Support (51.9%), and Recommendations (51.9%). You didn’t want the outside person to sue the other person (1.9%), To avenge you (1.9%), to threaten the other person (0.0%), to cause the other person pain (0.0%), to cause the other person expense (0.0%).

Considering how you felt at those times, you felt better about these ideas: Being understood (4.34 out of 5), Resolution (4.31), Being heard (4.29), Results (4.24), Solution (4.24), Agreement (4.23), Being acknowledged (4.20), Thank you (4.18), Productive (4.11), Result (4.10), and Cooperation (4.08). You felt worse about these ideas: Adversarial (1.76 out of 5), Leave it (1.76), Drop it (1.68), Ultimatum (1.67), Patronize (1.46), Give up (1.45), and Lawsuit (1.38).

Facing that kind of situation now you’d be more likely to involve a Mediator (3.83 out of 5), Mentor (3.74), Conflict Resolution Specialist (3.72), Dispute Resolution Professional (3.58), or Facilitator (3.53). You’d be least inclined to involve an Attorney (2.56 out of 5), Therapist (2.47), Referee (2.41), Pacifier (2.36), Judge (2.35), or Umpire (2.05).

The contexts of the situations you were thinking about were Workplace/workgroup (61.2%), Family matters (34.7%), Professional Services (26.5%), Neighborhood/Community (22.4%), Real Estate/Property (22.4%).

Demographics. 78% of you were 40+ years of age, mostly female (52.1%). You often work with other people (77.1%), are homeowners (66.7%), are parents (54.2%), are employees (50%) or are employed by someone else (43.8%).

What do you think? Surprised? There were certainly parts that surprised me – so I’m really glad I had your help. Thanks again!