After the training that was generously hosted by Community Mediation Services of Central Ohio (CMS) yesterday, I was asked how co-resolution would overlap with or apply CMS's Seven-Stage Model of Mediation.
I will first point out that there could be many styles and approaches to co-resolution. For example, some co-resolvers will prefer a fluid process that flows with the needs and direction of each case or set of disputants. The co-resolution structure is designed to create guiding incentives within the negotiation, so whatever feels natural within an interaction is likely the correct action to take. However, as dispute resolution professionals are first learning co-resolution, more structure could be helpful.
The Seven-Stage Model
The CMS Seven-Stage Model is a tightly-structured framework for mediation. It involves:
1.) Introduction
2.) Storytelling/Problem-Determination
3.) Summarizing
4.) Issue/Interest Identification
5.) Generating/Evaluating Alternatives
6.) Agreement
7.) Closure
The introduction is the initiating of the process in which the mediator explains the process and sets the ground rules.
In the storytelling phase, the mediator invites party input in and identifies problem behaviors. Problem behaviors are specific past or future behaviors that the other disputant did/did not do or will/will not do. It is important to focus the parties on the behaviors and not their interpretations of behaviors (e.g., "she is rude," "this is unfair"). The mediator then probes for the emotional effect or other effects that resulted from the problem behavior (e.g., "it sounds like that was frustrating for you," "so you're saying that this cost you time and money?").
The mediator then summarizes key information, confirming that the speaker was understood, testing the accuracy/completeness of the statements, and focusing the parties' attention on useful information. In a mathematically-precise method, the mediator then transposes the problem behaviors into "issues" that will be discussed as agenda items and the emotional/other effects into "interests" that will guide the discussion.
The mediator guides the parties through the issues, encouraging them to trade proposals or brainstorm solutions, until they reach impasse or resolution on all identified issues and interests. Finally, the mediator wraps up the process and sends the parties off with guidance and whatever agreement has been reached.
Applying the Seven-Stage Model in Co-Resolution
Like mediation, co-resolution is a process of facilitated negotiation, drawing input from the parties and then guiding an exchange of proposals for resolution. Unlike mediation, however, co-resolution
is conducted by partisan conflict coaches rather than an impartial mediator--this does not mean co-resolution cannot draw on or be structured on the Seven-State Model. While I would note that there is no "wrong" way to apply the co-resolution structure, here are some details for how a co-resolution could be conducted:
1.) The co-resolvers gather the disputants at the table, make introductions, explain the basics of the process (roles, ground rules, and caucuses), and assign a co-resolver to each disputant.
2. and 3.) The co-resolvers then ask who initiated the process, suggest that this person explain what brings them to the table (storytelling). After or as a party explains their perspective on the dispute, their own co-resolver is attempting to promote the positive aspects of the story, presenting the party in an understandable/positive light to the other side and focusing their party on important/useful elements of their case. During this time, the opposing co-resolver is asking clarifying/narrowing questions across the table.
This combination of the storytelling and summarizing phases allows the co-resolvers to draw out and analyze party input while maintaining their partisan roles. Each co-resolver should keep in mind that they are helping the assigned disputant--this will bring them to empathize with their party's perspective as it is being expressed.
4.) After both parties have expressed their perspectives, the co-resolvers will caucus with each of their assigned parties separately. This is an opportunity to solicit more input (parties are often more open and comfortable alone with their coach and away from the other disputant), identify issues and interests, and strategize a game plan for the negotiation.
5.) The co-resolvers then bring the parties back into joint session and conduct the negotiation. While strategies such as brainstorming that are available in the Seven-Stage Model can be appropriate in co-resolution, co-resolvers are not impartial and are therefore able to make suggestions, express counterpoints to the other side, and promote effective negotiation behavior by their own disputants.
6.) Just as the co-resolvers guide the negotiation as cooperative-yet-opposing coaches/advocates, the co-resolvers can also guide the creation of an agreement, making sure that the interests expressed by their respective disputants are addressed in the proposed terms.
7.) The end of the process offers an opportunity for each coach to check in with their disputant and provide parting advice on implementing their agreement and interacting with the other party. Closing is also unique in co-resolution because the co-resolvers can touch base with each other to discuss procedural matters between sessions within a dispute and air out concerns with each other's conduct at the end of the case. This debriefing helps to maintain a positive working relationship and effective strategies between teams of co-resolvers.
I hope this is helpful and look forward to further interactions with CMS.
6.02.2014
Co-resolution Journal: Conducting a Negotiation
[the following is based on an actual co-resolution case but, in order to maintain confidentiality, I will be incredibly vague and even misleading on the details that do not pertain to negotiation moves, actions, and arguments]
My co-resolver and I were conducting a change of custody from a parent to a non-parent. The non-parent was a relative of the parent that was absent from the table and, apparently, from the child's life. I was assisting the parent and my co-resolver was assisting the non-parent.
We started the process in a joint session and learned that the parties had agreed to the change in custody prior to coming to the table and needed little assistance in proposing a mutually-agreeable parenting time arrangement. The parties were both putting effort into expressing the sense of cooperation between them; however, when money issues such as child support arose, they both became very quiet. At this point my co-resolver called for a caucus.
I took my party, the parent, to a separate conference room, rehashed the progress that had been made thus far and asked her for reactions. I then conveyed my sense of the situation--she, Parent was agreeable to Non-parent having custody, Non-parent was willing to take custody, but money was going to be an issue (based on the noticeable discomfort in both parties when the topic arose). We then discussed Parent's thoughts on the subject, Parent's economic situation, and the amount of child support the absentee parent was ordered to pay, thereby building a base of knowledge for the two of us to collaboratively prepare boundaries, strategies, and arguments for the negotiation. We decided that we would not throw around numbers (possibly ending up negotiating against ourselves), but go in to the next joint session open to hear what Non-parent had to say, respond with her concerns, and then caucus again if necessary.
At the outset of the next joint session, I politely and subtly deferred to the other side to initiate the discussion. The other co-resolver then identified issues that had remained unresolved: child support and tax exemption. I suggested that we discuss tax exemption first--Non-parent made much more, so Parent was entirely willing to concede the tax exemption issue. In caucus, we had decided that we would start with this concession to show good faith, engender appreciation from Non-parent, and avoid tit-for-tat trading. Speaking for herself, Parent explained why she wanted Non-parent to have the tax exemption. Non-parent quietly accepted and Non-parent's co-resolver expressed appreciation for the concession.
Deferring to the agenda, Non-parent's co-resolver raised the issue of child support and then began to talk about all of the child's expenses that their side had discussed in caucus. I expressed the appreciation for Non-parent's undertaking these expenses that Parent had raised in caucus and then asked whether they were asking for reimbursement for expenses or a specific amount per month in support. Non-parent expressed that she wanted a regular and fair amount but did not want to touch the back support Parent was receiving from the absentee parent, as that money was already owed to Parent. Parent became emotional in a genuine catharsis, expressed that Parent would still have a different child at home even with the transfer in custody and that, as a result, Parent's overall expenses would not be reduced much (an argument we had discussed in caucus).
I then suggested a caucus and, when we got back into our conference room, Parent was willing to give a number. Because the number Parent suggested was a bit more than the absentee parent paid in monthly child support, I suggested that we use that argument to show that it was fair. When we returned, I structured our proposal to the other side, pointing out that Non-parent wanted a fair amount and that Parent was willing to pay slightly more than the Court had ordered the absentee parent to pay. Non-parent immediately and placidly accepted.
The time elapsed from raising the money issues--including two caucuses, an emotional catharsis, and the resolution of two arguments--was fifteen to twenty minutes. The other co-resolver mused that, under the less-involved assistance of a mediator, the case may not have been resolved. Apparently, Non-parent was entirely uncomfortable with talking about money issues (though they were important) and wanted the co-resolver to do the majority of the talking for their side.
Because the parties were able to trust and relax around their respective co-resolvers and because the co-resolvers were able to insert professionalism, artfulness, good arguments, and wise guidance into the negotiation, this matter was resolved quickly, thoroughly, and to the full satisfaction of the parties.
My co-resolver and I were conducting a change of custody from a parent to a non-parent. The non-parent was a relative of the parent that was absent from the table and, apparently, from the child's life. I was assisting the parent and my co-resolver was assisting the non-parent.
We started the process in a joint session and learned that the parties had agreed to the change in custody prior to coming to the table and needed little assistance in proposing a mutually-agreeable parenting time arrangement. The parties were both putting effort into expressing the sense of cooperation between them; however, when money issues such as child support arose, they both became very quiet. At this point my co-resolver called for a caucus.
I took my party, the parent, to a separate conference room, rehashed the progress that had been made thus far and asked her for reactions. I then conveyed my sense of the situation--she, Parent was agreeable to Non-parent having custody, Non-parent was willing to take custody, but money was going to be an issue (based on the noticeable discomfort in both parties when the topic arose). We then discussed Parent's thoughts on the subject, Parent's economic situation, and the amount of child support the absentee parent was ordered to pay, thereby building a base of knowledge for the two of us to collaboratively prepare boundaries, strategies, and arguments for the negotiation. We decided that we would not throw around numbers (possibly ending up negotiating against ourselves), but go in to the next joint session open to hear what Non-parent had to say, respond with her concerns, and then caucus again if necessary.
At the outset of the next joint session, I politely and subtly deferred to the other side to initiate the discussion. The other co-resolver then identified issues that had remained unresolved: child support and tax exemption. I suggested that we discuss tax exemption first--Non-parent made much more, so Parent was entirely willing to concede the tax exemption issue. In caucus, we had decided that we would start with this concession to show good faith, engender appreciation from Non-parent, and avoid tit-for-tat trading. Speaking for herself, Parent explained why she wanted Non-parent to have the tax exemption. Non-parent quietly accepted and Non-parent's co-resolver expressed appreciation for the concession.
Deferring to the agenda, Non-parent's co-resolver raised the issue of child support and then began to talk about all of the child's expenses that their side had discussed in caucus. I expressed the appreciation for Non-parent's undertaking these expenses that Parent had raised in caucus and then asked whether they were asking for reimbursement for expenses or a specific amount per month in support. Non-parent expressed that she wanted a regular and fair amount but did not want to touch the back support Parent was receiving from the absentee parent, as that money was already owed to Parent. Parent became emotional in a genuine catharsis, expressed that Parent would still have a different child at home even with the transfer in custody and that, as a result, Parent's overall expenses would not be reduced much (an argument we had discussed in caucus).
I then suggested a caucus and, when we got back into our conference room, Parent was willing to give a number. Because the number Parent suggested was a bit more than the absentee parent paid in monthly child support, I suggested that we use that argument to show that it was fair. When we returned, I structured our proposal to the other side, pointing out that Non-parent wanted a fair amount and that Parent was willing to pay slightly more than the Court had ordered the absentee parent to pay. Non-parent immediately and placidly accepted.
The time elapsed from raising the money issues--including two caucuses, an emotional catharsis, and the resolution of two arguments--was fifteen to twenty minutes. The other co-resolver mused that, under the less-involved assistance of a mediator, the case may not have been resolved. Apparently, Non-parent was entirely uncomfortable with talking about money issues (though they were important) and wanted the co-resolver to do the majority of the talking for their side.
Because the parties were able to trust and relax around their respective co-resolvers and because the co-resolvers were able to insert professionalism, artfulness, good arguments, and wise guidance into the negotiation, this matter was resolved quickly, thoroughly, and to the full satisfaction of the parties.
5.25.2014
A Case for the Ethicality of Co-resolution
I would like to take a moment (that coincidentally falls right after the moment that I completed a letter requesting an advisory opinion from the Ohio Supreme Court Board of Commissioners on Grievances and Discipline concerning the ethicality of co-resolution) to make a thoroughly-researched case for the ethicality of co-resolution.
The short version is that co-resolution is not the unauthorized practice of law and co-resolvers are not acting as attorneys. The long version is as follows:
The short version is that co-resolution is not the unauthorized practice of law and co-resolvers are not acting as attorneys. The long version is as follows:
I.
The Right to Choose an Alternative
to Litigation and Legal Assistance
First,
it must be noted that parties have the right to mutually choose the process
(e.g., facilitated negotiation, arbitration, litigation) by which they handle
their dispute. This means that parties
have the right to not litigate their dispute and not approach attorneys.[1] Judicial wisdom supports the right to avoid
litigation,[2]
and the Federal Arbitration Act (which is enacted verbatim in the Ohio
Arbitration Act[3]) has
allowed parties to enforce agreements to approach non-legal/non-court processes
of dispute resolution.[4] Taking a look beyond the quasi-judicial
process of arbitration, the lack of definition of “arbitration” in the Federal
Arbitration Act[5]
has led courts to grant parties broad discretion in the procedures by which
they handle their disputes without approaching courts or attorneys.[6] To be clear, I am not arguing about the enforceability of an agreement to stay litigation and compel
co-resolution—I am merely, pointing out that the law affords parties the
ability to choose non-court/non-legal forums in handling their disputes. However, going beyond the right to not
litigate, the ABA Model Rules of Professional Conduct impose a duty on
attorneys to inform clients of feasible alternatives to litigating their legal
rights,[7]
and “[s]everal jurisdictions encourage, but do not require,
lawyers to inform clients of ADR options.”[8] Thus, if both parties agree to forgo
litigation and legal assistance, they may temporarily “contain” their dispute
in an alternative process to litigation.
The
key result of this right to not litigate is that parties to a dispute have the
right to choose between bringing either attorneys or non-attorney advocates to
the negotiation table in these contained or mutually-agreed-to processes. Tried
and true examples of non-attorney advocates chosen over attorneys in resolving disputes
include union representatives,[9]
financial experts hired as representatives in securities disputes,[10]
sports agents,[11] and
lay advocates in administrative hearings concerning welfare benefits,[12]
Social Security applications,[13]
and others.[14] Even in active court cases, parties can avoid
legal expenses by agreeing to employ CASA advocates, instead of attorney Guardians ad
Litem, to act as advocates in the litigation process.[15]
Access
to non-legal advocates does not equate to a diminution of justice in the
system. Parties who have access to lay
advocates have, in some studies, expressed greater satisfaction with their
non-attorney advocates than similarly-situated parties did of their attorney
advocates.[16] Non-attorney advocates can use expertise in
areas other than legal knowledge during a negotiation[17]
and can be more accessible to parties who cannot afford the assistance of a
legally trained and licensed attorney.[18]
Co-resolution
applies this concept by offering communication, coaching, and cooperative negotiation
skills as the substantive area of expertise of the non-attorney advocates.
II.
Conflict Coaching and Ethical
Concerns with Non-Attorney Negotiators
Co-resolution
provides each disputant with a cooperative “conflict coach” to directly assist
them in the negotiation.[19] Conflict coaching is “a one-on-one process in
which a trained coach helps individuals gain increased competence and
confidence to manage and engage in their interpersonal conflicts and disputes.”[20]
This process emerged in the 1990s from
the fields of alternative dispute resolution and executive coaching[21]
and tends to promote the cooperative approach to resolving disputes that is
described in such books as Getting to Yes.[22] Some have argued, because both law-focused
attorneys and communication-focused non-attorneys each offer unique benefits in
a cooperative, non-legal negotiation forum such as mediation,[23]
that ethical rules concerning the unauthorized practice of law should be
modified to allow for the direct assistance of either attorneys or
non-attorneys.[24]
However,
because conflict coaches hold themselves out as negotiation assistants, if they
operated independently and sat at the table during a negotiation it might
create ethical concerns with the unauthorized practice of law.[25] While this concern has not been explored in
the literature or the case law, problems may arise when the non-attorney
conflict coach directly assists a party in negotiating a pending legal action
against an attorney.
Consider
a situation in which one party to a pending legal action hires a non-attorney
conflict coach to provide one-on-one assistance in negotiating cooperatively
and the other party hires an attorney. The
disputant with the cooperative, non-attorney conflict coach may be at a
disadvantage in the negotiation because the party with the attorney would be
able to use competitive negotiation tactics to take advantage of cooperative
negotiation behavior and would be able to offer a one-sided perspective on how
the court would handle the case if resolution was not reached. This concern appears to be pinpointed by Ohio
case law on the subject.
The
Ohio Supreme Court has defined the practice of law as “(1) legal advice and
instructions to clients advising them of their rights and obligations; (2)
preparation of documents for clients, which requires legal knowledge not
possessed by an ordinary layman; and (3) appearing for clients in public
tribunals and assisting in the interpretation and enforcement of law, where
such tribunals have the power and authority to determine rights of life,
liberty, and property according to law.”[26] While the Court initially held that the
practice of law is not limited to appearance at court,[27]
when a district court applied this ruling to define the practice of law as “all
advice to clients and all action taken for them in matters connected with the
law,” the Ohio Supreme Court overruled this as being an overbroad definition of
the practice of law.[28]
In
dealing with non-attorneys engaging in the unauthorized practice of law by
assisting or participating in negotiations, the Ohio Supreme Court has found
such violations when a person, on behalf of another and without the consent of
both parties, contacted the opposing party with a letter that implied a
discrimination claim, threatened legal action, and offered a $200,000.00
settlement.[29] Obviously, evaluation of legal rights and the
dollar value of a potential court case are actions that should only be
conducted by attorneys. The Ohio Supreme
Court has cited this case, stating “[w]e have repeatedly held that nonlawyers
engage in the unauthorized practice of law by attempting to represent the legal
interests of others and advise them of their legal rights during settlement
negotiations,”[30]
in addressing situations in which non-attorneys negotiate directly against
attorneys[31]
or negotiate pending litigation against the other party directly.[32]
The
common thread in these cases (and the key distinction between these cases and
the fully-legal and common non-attorney advocates described in the previous
section[33])
is that the non-attorneys who were found in violation of UPL statutes were
acting alone and outside of a defined process that is “contained” from
court-involvement, such as mediation, arbitration, or administrative hearings. Outside of defined processes such as
mediation and arbitration, “which clearly represent a track
apart from the traditional litigation route, negotiation remains for many
nothing more than a component of the litigation process.”[34] Out in the open, litigation is a possibility looming
over negotiations and, therefore, non-attorneys may end up negotiating against
attorneys.
The
purpose of unauthorized practice of law statutes is to protect the public from
unskilled legal advice, not to limit the type of advocacy that parties can mutually
choose.[35] So long as both parties agree to the process,
the situation becomes akin to mediation and arbitration and less akin to one
person operating an “advocacy” service.
Thus,
a conflict coach who is operating independently of a defined system may face
unauthorized practice of law issues. But
this does not mean that the direct assistance in cooperative communication and
negotiation skills, offered by conflict coaches, is a benefit that is beyond
the reach of opposing parties who both want it.
III.
Co-resolution as an Ethical
Process for Non-Attorney Negotiation Assistance
Co-resolution
addresses these potential ethical issues by providing each party to the dispute
with a conflict coach and defining the process as a contained, separate dispute
resolution process.
First
introduced in 2008, co-resolution is a facilitated negotiation process in which
two dispute resolution professionals operate as a single service and act as a
team of coaches, each assisting one disputant in negotiating under their
interests.[36] Parties approach this process together,
participate voluntarily, and, afterwards, are free to pursue legal or other
non-legal processes if desired. Both
coaches (“co-resolvers”) make it explicitly clear that they are not acting as
attorneys and are only assisting in cooperative negotiation and communication
techniques as they facilitate a resolution to the dispute. Co-resolvers do not offer legal advice and
direct the parties to consult with attorneys if they ask questions regarding
their legal rights.
Thus,
all of the rules that apply to mediation as a process for facilitated
negotiation also apply to co-resolution.
For example:
1.
The
parties must both agree to engage the process—neither side is able to compel
the other into participating against their will;
2.
Participation
is voluntarily and either party is free to discontinue the process (disengaging
both coaches) at any time;
3.
The
coaches only facilitate communication, and the parties maintain
self-determination over the outcome;
4.
The
coaches do not offer or provide legal advice;
5.
The
coaches (like mediators) can be attorneys or non-attorneys, however, within the
process they are not acting as attorneys;
6.
Each
party can bring an attorney to provide legal advice during the process;
7.
The
process ends when the parties reach an agreement or an impasse.
However,
unlike mediation, the co-resolvers are not neutral—each one assists one party
in negotiating a resolution of the dispute.
The
unique benefit that co-resolution offers over other forms of
negotiation-advocacy is that, because the co-resolvers act as an ongoing team
within a contained process, each co-resolver is able to know that the opposing co-resolver
will only support cooperative negotiation strategies. This dynamic is the result of
cooperation-inducing forces described in game theory and studies of
negotiation.
First,
game theory (“the study of mathematical models of conflict and cooperation
between intelligent rational decision-makers”[37])
has shown that rational decision-makers will compete (seek an individual advantage)
rather than cooperate (seek mutual benefit) in a single interaction.[38] This dynamic occurs because each knows that
competition garners marginal gains over attempting to cooperate. Furthermore, each knows that the other side
is operating under similar incentives to compete and must therefore compete to
protect themselves from the other side’s competitive moves. For example, consider attorneys who can
either act as tough competitors or conciliatory cooperators: because each
attorney operates independently (is chosen by one party), each attorney is
under incentive to present themselves as a tough competitor and each party is
under incentive to hire a tough attorney (for fear of what kind of attorney the
other side will hire).[39]
On
the other hand, if the decision-makers were to interact on an indefinitely
repeating basis, both would seek to cooperate.[40] The reason for this is that repeated
cooperation (where both receive a mutually-acceptable outcome) will, over time,
garner a greater outcome for each individual than repeated competition (where both
parties attempt to undermine each other and end up with either a limited
outcome or no outcome at all). The power
of future interaction is visible in the legal field. As attorneys (independent advocates hired
separately on a case-by-case basis) became more numerous over the past
half-century, causing them to interact less frequently, their competitiveness
has increased and their civility has decreased to the point of “crisis.”[41] However, in situations where attorneys
interact frequently—such as small towns,[42]
small pools of public defenders and prosecutors,[43]
and practice groups of collaborative lawyers[44]—cooperation
and civility are enforced and protected through the advocates’ ongoing working
relationship with each other. As a
result, the ongoing interaction between the co-resolvers should, in theory,
keep their negotiation behavior and coaching efforts cooperative.
Next,
studies of negotiation and dispute resolution have confirmed the real-world
power of these strategic theories. In
informal negotiation, where there are no rules or oversight that can curb
competition, the above-described game-theory pressures towards competition in a
single negotiation are especially prominent.[45] Studies have shown that, as independent
advocates, attorneys are especially prone to engage in deception in settlement
negotiation.[46] However, repeated interactions between the
same players have been shown to produce cooperation by “cast[ing] a shadow back
upon the present and thereby affect[ing] the current strategic situation.”[47] Supported by psychological studies of
negotiation behavior, this is the reason that “[s]avvy
negotiators expend time and effort to build a positive personal relationship
with their opponents because such relationships can pay dividends.”[48] The ongoing relationship and the negotiation rapport
between the co-resolvers should therefore contribute to smooth interactions and
amicable coaching efforts.
Thus, because co-resolvers operate
through an ongoing working relationship, the assistance they provide to
opposing parties is cooperative in nature—the repeated interaction between the
co-resolvers motivates cooperative behavior, and each party can know that the
opposing co-resolver will only assist the opposing party in cooperative
negotiation behavior. This dynamic of
reliable cooperation has been demonstrated through participant surveys and
anecdotal observations gathered in co-resolution pilot projects in the United
States and Canada, strongly indicating that parties felt loyally supported in a
cooperative negotiation environment.[49]
However, more important to the point
of this letter, the insulating effect of the co-resolution process allows the
co-resolvers to serve as conflict coaches without drawing concerns relating to
the unauthorized practice of law. Once
again, like mediation, co-resolution is a defined, voluntary process. The parties approach it together (each
desiring to have the benefit of a negotiation coach and to work across from a
cooperative opposing coach), participate voluntarily, and either reach
agreement or impasse. The co-resolvers
individually assist their respective parties in communicating and negotiating
effectively while also acting as a team in guiding both parties toward a mutual
resolution. Because the co-resolvers
operate within a defined process, in which both parties agree to participate,
there is no danger that a co-resolver will act as an attorney, operating independently
and conducting settlement negotiations against an actual attorney under pending
litigation.[50]
Furthermore, parties to
co-resolution, like participants in mediation, operate apart from the exercise
of their legal rights[51]
but do not fully give up these rights.[52] Within the facilitated negotiation of mediation
or co-resolution, the parties are able to exercise self-determination and
define their own agreement rather than choosing from options that would be
imposed by a court.[53] However, these parties are also free to walk
away from the process, take agreements to independent attorneys for approval,
and proceed to litigation if they so desire—therefore, they never give up legal
rights or legal assistance by participating in co-resolution. But, instead of relying on the parties to
understand and exercise their access to attorneys and the courts, co-resolvers
explain that the process is voluntary and that either party can terminate the
process at any time.[54] Regardless, parties who reach out-of-court
agreement—either through co-resolution, mediation, or settlement negotiations
facilitated by independent attorneys—forgo their legal rights to some degree
but apparently value this decision over the uncertainty of a judicial
determination of their case.[55]
Furthermore, the courts have recognized
a strong public policy that favors settling cases efficiently to avoid prohibitive
legal fees for the parties.[56]
Skeptics of co-resolution may see
two coaches sitting next to separate parties, assisting them in discussing and
negotiating their dispute, and improperly label the process as the unauthorized
practice of law or a violation of legal ethics.
However, doing so would ignore the plethora of non-attorneys who assist,
negotiation, and advocate for parties, affecting potential legal rights in many
fields and, yet, operating outside of potential court involvement.[57]
The key to keeping non-attorney
advocates ethical is containing or proscribing their assistance away from
pending litigation—so long as the non-attorney advocates are operating in a
defined process, they are not in danger of taking the role of legal
advocate. Co-resolution is a defined
process, mutually undertaken by both parties like mediation and arbitration, and
also like mediation and arbitration, it is clearly separate and apart from the
litigation process.[58]
In conclusion, the conflict coaches
who assist the parties in communication and negotiation within the
co-resolution process are not acting as attorneys and should not be in
violation of legal ethics rules or unauthorized practice of law statutes.
[1] Blinco v. Green Tree Serv.,
Inc., 366 F.3d 1249, 1252 (11th Cir. 2004) (citing , Mitchell v. Forsyth,
472 U.S. 511, 526 (1985) (“The arbitrability of a dispute similarly gives the
party moving to enforce an arbitration provision a right not to litigate the
dispute in a court and bear the associated burdens”).
[2] See Hon. Ron Spears, Lincoln Warnings: ‘You Have the Right to
Avoid Litigation…’, 94 Ill. B.J.
438 (2006).
[3] Ohio Rev. Code Ann. §§ 2711.01-.24 (West
2008). The Ohio Arbitration Act applies to written contracts and expressly
declares them “valid, irrevocable, and enforceable, except upon grounds that
exist at law or in equity for the revocation of any contract.” § 2711(A). This
language is exactly the same as the language in the FAA. See 9 U.S.C.A.
§ 2 (West 2008).
[4] United
Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574
(1960) (ruling that a federal court may compel an employer to submit a union's
grievance to arbitration); United Steelworkers of Am. v. Am. Mfg. Co.,
363 U.S. 564 (1960); United Steelworkers of Am. v. Enter. Wheel & Car
Corp., 363 U.S. 593 (1960). Like the
Federal Arbitration Act, the Ohio Arbitration Act has similarly been interpreted
to create a presumption of validity regarding the enforceability of written
contracts containing arbitration agreements. OHCONSL § 21:3. For Ohio case law, see Maestle v. Best Buy
Co., (2003) 100 Ohio St.3d 330, 334 800 N.E.2d 7 (“We hold that a trial
court considering whether to grant a motion to stay proceedings pending
arbitration filed under R.C. 2711.02 need not hold a hearing pursuant to R.C.
2711.03 when the motion is not based on R.C. 2711.03.”), and describing the
strong public policy favoring arbitration/mediation alternatives to the courts,
see Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 471, 700 N.E.2d 859
(1998), ABM Farms, Inc. v. Woods, 81 Ohio St.3d 498, 500, 692 N.E.2d 574
(1998). Where there are doubts regarding the application of an arbitration
clause, such doubts should be construed in favor of arbitrability. Council
of Smaller Enterprises v. Gates, McDonald & Co., 80 Ohio St.3d 661,
666, 687 N.E.2d 1352 (1998)
[5] Thomas J. Stipanowich, The
Arbitration Penumbra: Arbitration Law and the Rapidly Changing Landscape of
Dispute Resolution, 8 Nev. L.J. 427, 434-435 (noting “the silence of the
FAA and UAA regarding the definition of arbitration, coupled with the fact that
federal and state statutes establish no formal requirement that arbitration
agreements be explicitly identified as such…”).
[6] Salt Lake
Tribune Publ'g Co. v. Mgmt. Planning, Inc., 390 F.3d 684, 690 (10th Cir.
2004) (“Parties need not establish quasi-judicial proceedings resolving their
disputes to gain the protections of the FAA, but may choose from a broad range
of procedures and tailor arbitration to suit their peculiar circumstances.”).
[7] Model
Rules of Prof’l Conduct R. 2.1 cmt. (1983) (stating that “when a matter
is likely to involve litigation, it may be necessary under Rule 1.4 to inform
the client of forms of dispute resolution that might constitute reasonable
alternatives to litigation”).
[8] Robert F.
Cochran Jr., Professional Rules and Adr: Control of Alternative Dispute
Resolution Under the ABA Ethics 2000 Commission Proposal and Other Professional
Responsibility Standards, 28 Fordham
Urb. L.J. 895, 904 (2001)
[9] Lisa B. Bingham
et al., Exploring the Role of Representation in Employment Mediation at the
USPS, 17 Ohio St. J. on Disp. Resol.
341, 359, 363-66 (2001) (presenting surveys of mediation participants who were
unrepresented, represented by an attorney, represented by a fellow employee, or
represented by a union representative).
[10] Justine P. Klein, Non-Attorney
Representation, 63 Fordham L. Rev.
1605, 1608 (stating “They also took the position that non-attorney
representatives took these cases at a cost that was less than that which would
be charged by lawyers. They also made the argument that because a number of
non-attorney representatives were former securities industry people, they
provided a level of expertise that a customer doesn't always get when retaining
a lawyer . . . It is clear that these
non-attorney representatives do provide some access and they do provide a freedom
of choice.”).
[11] Stacey B.
Evans, Sports Agents: Ethical Representatives or Overly Aggressive
Adversaries?, 17 Vill. Sports & Ent. L.J. 91 (2010) (“Degree Directory
defines a sports agent as someone who “handles contract negotiations, public
relations issues and finances, and he or she will often procure additional
sources of income for the athlete (such as endorsements).”).
[12] See Earl
Johnson, Jr., Justice for America's Poor in the Year 2020: Some
Possibilities Based on Experiences Here and Abroad, 58 DePaul L. Rev. 393, 416-417 (2009).
[13] Drew A.
Swank, Non-Attorney Social Security Disability Representatives and the
Unauthorized Practice of Law, 36 S. Ill.
U. L.J. 223, 224 (2012) (“Before
the Social Security Administration, Bob's actions are not only completely
legal, they are a common, everyday occurrence for approximately five thousand non-attorney representatives.”).
[14] Id. at 234 (“As administrative agencies were designed without the
formalities and rules of the courts, they were ideally suited for non-attorney representatives. As the number of administrative
agencies increased, so too did the opportunities for non-attorneys to practice
law. Historically, non-attorneys have routinely appeared before certain federal
administrative agencies.”).
[15] Gerard F.
Glynn, The Child Abuse Prevention and Treatment Act-Promoting the Unauthorized
Practice of Law, 9 J. L. & Fam.
Stud. 53, 74 (2007) (“The non-lawyer advocate can provide the
investigation, monitoring and follow-up that lawyers do not have the time or
receive adequate pay to do…”).
[17] Herbert M.
Kritzer, Legal Advocacy: Lawyers and Nonlawyers at Work 77, 111-49
(1998) (noting that “formal training (in the law) is less crucial than is
day-to-day experience in the unemployment compensation setting”); see also Russell Engler, Connecting
Self-Representation to Civil Gideon: What Existing Data Reveal About When
Counsel is Most Needed, 37 Fordham
Urb. L.J. 37, 38 (2010), at 3, 47-48 (noting importance
of not just any advocate, but an advocate with specialized expertise).
[18] Kay Hennessy Seven and Perry A.
Zirkel, In the Matter of Arons: Construction
of the Idea's Lay Advocate Provision Too Narrow?,
9 Geo. J. on Poverty L. & Pol'y
193 (2002) (“Non-attorneys or lay advocates with specialized knowledge can facilitate
access to the legal system for parties with restricted financial means who do
not have the legal skill or knowledge to represent themselves.”); see
generally Marcus J. Lock, Increasing
Access to Justice: Expanding the Role of Nonlawyers in the Delivery of Legal
Service to Low-Income Coloradans, 72 U. Colo. L. Rev. 459 (2001); Alex J. Hurder, Nonlawyer Legal Assistance and Access to
Justice, 67 Fordham L. Rev.
2241 (1999)
[19] See Nathan Witkin, Co-resolution: A Cooperative Structure for
Dispute Resolution, 26 Conflict
Resol. Q., 239 (2008).
[20] Cinnie Noble, Conflict
Management Coaching: The CINERGY Model 12 (2012); see also Tricia S. Jones and Ross Brinkert, Introducing the
One-on-One Dispute Resolution Process Conflict Coaching: Conflict Management
Strategies and Skills for the Individual (2008) (defining conflict coaching
as “a process in which a coach and client communicate one-on-one for the
purpose of developing the client's conflict-related understanding, interaction strategies
and interaction skills.”); see also Ross
Brinkert, ADR Plus One: Developing ADR Practice Through Coaching (May
2003), abridged version available at www. mediate. com; see also Cinnie Noble, Conflict
Coaching: A Preventative Form of Dispute
Resolution” (2002) and “Mindfulness in Conflict
Coaching (2006), both available at
www.mediate.com.
[21] Cindy Fazzi, Introducing . .
., 64 Disp. Resol. J. 90, 90.
[22] Roger Fisher and William Ury, Getting
to Yes (2nd ed. 1991).
[23] Sida Liu, Beyond Global
Convergence: Conflicts of Legitimacy in a Chinese Lower Court, 31 Law & Soc. Inquiry 75, 95 (2006)
(observing that “skills required in mediation are no longer legal knowledge,
but mostly interpersonal skills and familiarity with the customs of the local
community” or “nonlegal skills”).
[24] Jean R. Sternlight,
Lawyerless Dispute Resolution: Rethinking A Paradigm, 37 Fordham Urb. L.J. 381, 411-12 (2010)
(arguing that “the need for providing emotional support, self-agency, and an
endorsement or reputational boost of the sort discussed by Sandefur may be just
as great or even greater in mediation or arbitration than in litigation . . .
[but that] . . . rather than assume that the substitution of
non-attorney-representatives for attorneys makes more sense in ADR than in
litigation, we should rethink the rules on unauthorized practice of law with
respect to all forms of dispute resolution.”).
[25] Ohio
Rev. Code Ann. §§4705.07(A): No person who is not licensed to practice
law in this state shall do any of the following: (1) Hold that person out in
any manner as an attorney at law; (2) Represent that person orally or in
writing, directly or indirectly, as being authorized to practice law; (3)
Commit any act that is prohibited by the supreme court as being the
unauthorized practice of law.
[26] Worthington City School Dist. Bd. of Edn. v. Franklin Cty. Bd. of
Revision, 85 Ohio St.3d 156, 707 N.E.2d 499, 503-504 (1999),
citing Mahoning Cty. Bar Assn. v.
The Senior Serv. Group, Inc. (Bd.Commrs.Unauth.Prac. 1994), 66 Ohio
Misc.2d 48, 52, 642 N.E.2d 102, 104.
[27] Land Title Abstract &
Trust Co. v. Dworken, 129 Ohio St. 23 (1934) (“The practice of law is not
limited to the conduct of cases in court. It embraces the preparation of
pleadings and other papers incident to actions and proceedings on behalf of
clients before judges and courts…”).
[28] Dayton Bar Association v.
Lender’s Services Inc., 40 Ohio St. 3d 96 (1988) (“the mere use of legal
terms of art…does not, standing alone…constitute the practice of law”).
[29] Cleveland Bar Assn. v. Henley, 95 Ohio St.3d 91 (2002).
[30] Cincinnati Bar Assn. v. Foreclosure Solutions,
L.L.C., 123 Ohio St.3d 107
(2009).
[31] Disciplinary Counsel v. Brown, 121 Ohio St.3d 423 (2009) (stating that “one
who purports to negotiate legal claims on behalf of another and advises
persons of their legal rights…engages in the practice of law”) (emphasis
added).
[32] Cincinnati Bar Assn., 123 Ohio St.3d 107.
[33] See Section I., supra,
footnotes 9-15
[34] Robert C.
Bordone, Fitting the Ethics to the Forum: A Proposal for Process-Enabling
Ethical Codes, 21 Ohio St. J. on
Disp. Resol. 1, 13-14 (2005) (“Unlike arbitration and mediation, which
clearly represent a track apart from the traditional litigation route,
negotiation remains for many nothing more than a component of the litigation
process.”).
[35] See In re
Opinion No. 26 of the Comm. on the Unauthorized Practice of Law, 654 A.2d
1344, 1350 (N.J. 1995); see also Morley v. J. Pagel Realty &
Ins. Co., 550 P.2d 1104, 1107 (Ariz. Ct. App. 1976) (“purpose is to protect
the public from the intolerable evils which are brought upon people by those
who assume to practice law without having the proper qualifications”) (quoting Gardner
v. Conway, 48 N.W.2d 788, 794 (Minn. 1951)); Beach Abstract & Guar.
Co. v. Bar Ass'n, 326 S.W.2d 900, 903 (Ark. 1959) (“This prohibition by us
against others than members of the Bar of the State of Arkansas from engaging
in the practice of law is not for the protection of the lawyer against lay
competition but is for the protection of the public.”); Gardner,
48 N.W.2d at 794 (“purpose is to protect the public from the intolerable evils
which are brought upon people by those who assume to practice law without
having the proper qualifications”); Cape May County Bar Ass'n v. Ludlam,
211 A.2d 780, 782 (N.J. 1965) (purpose
behind prohibiting the unauthorized
practice of law is to protect the
public against incompetent legal work); People v. Alfani, 125 N.E. 671,
673 (N.Y. 1919) (purpose is “to protect the public from ignorance,
inexperience, and unscrupulousness”); State v. Buyers Serv. Co., 357
S.E.2d 15, 19 (S.C. 1987) (purpose is to “protect the public from receiving improper
legal advice”).
[36] See Witkin, supra, note
19.
[37] Roger B. Myerson, Game Theory: Analysis of Conflict
1 (1991).
[38] Shaun P. Hargeaves Heap and
Yanis Varoufakis, Game Theory: A Critical Introduction 81-82, 168-170
(1995).
[39] Orley Ashenfelter, David E. Bloom, and Gordon B. Dahl, Lawyers
as Agents of the Devil in a Prisoner’s Dilemma Game, 10 J. Empirical Legal Stud. 399 (2013) (using empirical analysis to
show that these prisoner’s dilemma dynamics do, in fact, induce competitive
behavior in the legal field).
[40] Hargeaves Heap and Varoufakis, supra note 38, at 170-174.
[41] Roger E.
Schechter, Changing Law Schools to Make Less Nasty Lawyers, 10 Geo. J. Legal Ethics 367, 380 (1997)
(“Unlike the “litigation explosion”--where there is a debate over whether the
problem exists at all--there does not seem to be much written argument claiming
that the civility crisis is being exaggerated.”); see also Mary Ann Glendon, A Nation
Under Lawyers: How the Crisis in the Legal Profession is Transforming American
Society 5 (1994) (citing how conduct once not tolerated is now widely
practiced); Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal
Profession 1 (1993) (arguing that “the profession now stands in danger of
losing its soul”); Sol M. Linowitz, The Betrayed Profession: Lawyering at
the End of the Twentieth Century (1994) (blaming the profession's decline,
in part, on a desire to seek high salaries); Russell G. Pearce, The
Professionalism Paradigm Shift: Why Discarding Professional Ideology Will
Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. Rev. 1229 (1995) (recommending a
business paradigm to replace the professionalism paradigm in legal ethics).
[42] Schechter,
supra note 41, at 380 (“While
small-town lawyers in remote and bucolic corners of the country may continue to
treat each other with some degree of professional courtesy, that there is a
problem in most of the more populous places where law is practiced seems
undeniable.”); Joseph
Guy Rollins, The Way We Were Fifty Years Ago, 33-OCT
Hous. Law. 29, 34 (1995) (“My
first eleven years of practice were in a small town, and I remember with
pleasure and nostalgia the civility and pleasant relationship between lawyers,
judges, and court personnel. Even in Houston courtrooms in the late 1950’s
there was almost the same small town friendliness. It is a shame that this has
been lost.”).
[43] Roy B. Flemming, If You Pay
the Piper, Do
You Call the Tune?
Public Defenders in America's Criminal Courts, 14 Law & Soc. Inquiry 393, 397-400 (1989).
[44] John
Lande, Possibilities for Collaborative Law: Ethics and Practice of Lawyer
Disqualification and Process Control in A New Model of Lawyering, 64 Ohio St. L.J. 1315, 1380-81 (2003) (“Moreover,
membership in local CL groups can help practitioners maintain reputations for
acting cooperatively.”).
[45] David A. Lax and James K.
Sebenius, The Manager as Negotiator 38-43, 154 (1986).
[46] Art
Hinshaw & Jess K. Alberts, Doing the Right Thing: An Empirical Study of
Attorney Negotiation Ethics, 16 Harv.
Negot. L. Rev. 95, 112 (2011) (“Pepe found that more than half of his
study's respondents believed that it was permissible to “facilitate” a
settlement agreement based on the false testimony if they found out about the
misstatement after the deposition. More
specifically, more than one-third of the respondents thought it was acceptable
to enter into a settlement agreement without disclosing the fact that the
deposition testimony was erroneous.”).
[47] Robert Axelrod, The Evolution
of Cooperation 12 (1984).
[49] Co-resolution was piloted in the
Franklin County Domestic Relations Mediation program beginning in June, 2012,
handling cases that screened as high-conflict.
In surveys collected from 44 participants, parties rated satisfaction
with their own coach at 4.8/5.0 and comfort with the opposing coach at 4.6/5.0. This indicates that the coaches were able to
help their respective parties while maintaining cooperation and civility across
the table. Co-resolution was also
piloted in labor relations disputes in School District 36, Surrey, British
Columbia (the largest school district in the province). One co-resolver in that pilot project
described co-resolution as advocacy without the typical spin or
gamesmanship—the negotiators were able to trust each other and cut to the
bottom line.
[50] See Cleveland Bar Assn.,
95 Ohio St.3d 91, Cincinnati Bar
Assn., 123 Ohio St.3d 107, and Brown, 121 Ohio St.3d 423 (As
discussed in the previous section, these cases involved an individual
negotiating on behalf of another either against an opposing attorney or party
to a pending legal action. Outside of a
contained process of dispute resolution, agreed to by both parties, judicial
decision-making through litigation is a possibility and negotiation assistance
must be conducted with accurate evaluation of what the court could do—this can
only be offered by legal counsel).
[51] Martin A.
Frey, Does Adr Offer Second Class Justice?, 36 Tulsa L.J. 727, 758 (2001) (“The parties in a mediated
agreement may elect to give up their legal rights in exchange for an outcome
that makes personal or business sense. The mediated agreement ends the dispute,
establishes certainty as to the rights and duties of the parties, and permits
the parties to move forward. At times, the parties have a continuing business
relationship that is enhanced by the mediated agreement.”).
[52] Joel
Kurtzberg & Jamie Henikoff, Freeing the Parties from the Law: Designing
an Interest and Rights Focused Model of Landlord/tenant Mediation, 1997 J. Disp. Resol. 53, 75 (1997) (“The
critics act as if mediators are faced with a choice between either
ignoring the law completely or imposing it on the parties. They fail to see that a third option exists,
perhaps because so many mediators fail to see this as well. This third
mediation approach attempts to “free the parties from the law” by embracing it
and enabling the parties to both fully understand it and to decide for
themselves whether they accept or reject its underlying principles.”).
[53] Jacqueline
Nolan-Haley, Self-Determination in International Mediation: Some Preliminary
Reflections, 7 Cardozo J. Conflict
Resol. 277 (2006).
[54] Witkin, supra, note 19, at 243-244 (one key dynamic within the
co-resolution structure is that each party’s ability to terminate the process
keeps the co-resolvers loyal to their assigned party—if one party felt “ganged
up on” they could terminate the process for all participants. Thus, co-resolvers are encouraged to explain
the right to walk away to the parties at the outset of the process.).
[55] For a model predicting settlement values given litigation costs and uncertainty, see John P. Gould, The Economics of Legal Conflicts, 2 J. Legal Stud. 279, 281-86 (1973); Sheila
F. Anthony, Antitrust and Intellectual
Property Law: From Adversaries to Partners, 28 AIPLA Q.J. 1, 36-37 (2000) (“In
such settlements, parties may give up rights that they would otherwise
vindicate if litigation costs and risks were not prohibitive.”); Jonathan T.
Molot, How Changes in the Legal Profession Reflect Changes in Civil
Procedure, 84 Va. L. Rev. 955,
959-60 (1998) (observing that “liberal pleading and discovery under the Federal
Rules have altered litigation dynamics by making lawsuits more expensive and
inducing settlements based on this expense.”).
[56] Speed Shore Corp. v. Denda,
605 F.2d 469, 473 (9th Cir.1979) (“It is well recognized that settlement
agreements are judicially favored as a matter of sound public policy. Settlement agreements conserve judicial time
and limit expensive
litigation.”); United
States v. McInnes, 556 F.2d 436, 441 (9th Cir.1977) (“[T]he law favors and
encourages compromise settlements.... [T]here is an overriding public interest
in settling and quieting litigation.”).
[57] See Section I., supra, footnotes
9-15.
Subscribe to:
Posts (Atom)
Posts
