The document discusses collaborative practice and mediation as alternative dispute resolution methods. It explains that collaborative practice involves participants agreeing not to go to court and to share all relevant information. Experts work for both participants rather than taking opposing positions. Mediation and collaborative practice aim to resolve disputes through non-adversarial problem solving rather than litigation. The document provides statistics showing high settlement rates for disputes resolved through mediation, particularly for business and employment cases.

1. Stevens County Bar Association CLE: Colville, WA
February 9, 2012
© Pruitt-Hamm Law & Mediation Services, PS

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

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

6.  Business Disputes
 CPR Institute For Dispute Resolution
 "Mediation success rates for business disputes, i.e.
cases that result in settlement during or shortly after
the mediation, quoted by CPR and other leading ADR
organizations, generally are in the 80%-90% range." -
Kaskell, Peter H. "Is Your Infringement Dispute
Suitable for Mediation?" (Alternatives March 2002)
 4,000 operating companies have signed CPR's
Corporate Policy Statement on ADR.
 1,500 law firms have signed CPR's Law Firm Policy
Statement on ADR.
 Almost all federal and state courts now use some
form of ADR.

7. Employment
Gibbs, David H. "After Waffle House, Arbitration Gets 'New Trilogy' of Employment Law." Alternatives
February 2002.
"The court notes that out of about 80,000 employment discrimination charges filed in 2000 with
the EEOC [Equal Employment Opportunity Commission], the agency found reasonable cause in only
8,248 [10.3%]. In 2000, the EEOC filed 291 lawsuits and intervened in 111 others."
"The number of employment discrimination cases tripled during the last decade."
"The average litigation cost for a single plaintiff case is estimated at more than $93,000 and that of
a class action $462,000."
Phillips, F. Peter. "Current Trends in Management and Resolution of Employment Disputes." For the
Defense July 2002.
Discusses the classic three-stepped ADR program and its modifications (1. Local Management
Review, 2. Nonbinding Mediation, and 3. Binding Arbitration) as used in companies such as
Anheuser-Busch, United Parcel Service (UPS), UBS PaineWebber, Texaco, and GE Corporate.
"Nearly all disputes submitted to systematic employment dispute resolution programs are resolved
by agreement, prior to the arbitration stage."
Halliburton, Johnson & Johnson: fewer than 2% of disputes proceed to the third stage,
arbitration.
GE: in 1998-9, few disputes went to formal mediation and only one went to arbitration.
U.S. Air Force: in 2000, [2,728] disputes were subject to ADR; 79% were resolved before
arbitration.
U.S. Postal Service (mediation-only): since 1997, formal complaints to the EEO [Equal
Employment Opportunities Trust] have decreased by 26%, 76% of the claims were resolved or
not pursued, and "participant satisfaction on a variety of parameters measured, on average,
substantially above 90%."
EEOC: "of 7,490 charges mediated during FY99, 5,254 (70%) were successfully concluded."

8. Trial And Civil Courts
"Report to the Legislature on the Impact of Alternative Dispute Resolution on the Massachusetts
Trial Court." Prepared by the Supreme Judicial Court/Trial Court Standing Committee on Dispute
Resolution. February 2, 1998.
Middlesex Multi-Door Courthouse (MMDC), 1992. Study compared the success of cases from a
control group (traditional litigation) and experimental group (Multi-Door: case evaluation,
mediation, standard arbitration, complex case management, summary jury trial, mini trial) on a
variety of dimensions. Cases were randomly assigned to control or experimental group.
Higher satisfaction rate for MMDC participants in terms of case
processing time, litigant and court costs, and resource requirements.
Over 25 more attorney hours were spent on control group than MMDC
cases.
One-third (33%) more motions were filed in control group cases; more
documents per case were processed for control group cases.
Massachusetts Motor Vehicle Tort Litigation Case Evaluation Program, 1992. Study assessed
degree of user satisfaction, amount of attorney time spent on case, and time to proc ess the
case in comparison to a control group (traditional litigation). Cases were randomly assigned to
control or experimental group.
Average scores for user satisfaction were higher for the experimental
group.
"In terms of median time from filing to "disposition", experimental
cases had median time more than thirty (30) days shorter than control
group cases."

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

10. In a study by Jessica Pearson and Nancy Thoennes, “Divorce Mediation:
Reflections on a Decade of Research, published in the book “Mediation
Research” (Kenneth Kressel and Dean G. Pruitt eds., 1989), the authors
reported the following:
Disputants consider mediation less damaging to relationships with former
spouses than traditional courtroom proceedings.
Voluntary participation in mediation does not appear to produce higher
settlement rates than mandated participation in mediation.
Users find that mediation identifies the real issues in a dispute.
Users find that mediation is less rushed and less “superficial” than
courtroom proceedings.
Of those who reached an agreement in mediation, two-thirds of both men
and women agreed that the spousal support was fair, and more than two-
thirds of both men and women were satisfied with the division of property.

11. In a study by Michael Benjamin and Howard Irving, “Research in Family
Mediation, Review and Implications,” published in 13 Mediation
Quarterly 53 (1995) and research by Joan Kelly, “A Decade of Divorce
Mediation Research,” published in 34 Family and Conciliation Courts
Review 373 (1996), the authors found the following:
Mediation produces agreement in 50 to 80 percent of cases.
Researchers have not noted a statistical difference in the treatment of
child support payments, although mediating fathers are more likely to
agree to pay for “extras” for their children and are more likely to agree
to help with college expenses.
In one study, couples in the adversarial sample reported spending
134% more (more than twice as much) for their divorces than those in
the mediation sample.

13.  -$72,000 Litigation with Trial
 -$35,000 Litigation with Settlement
 -$25,000 Collaborative Divorce
 -$8,000 Mediation with Settlement
 Further research at:
https://www.collaborativepractice.com/_t.asp?T=Survey

14.  Of divorcing couples who chose to use
Collaborative Practice, the following show what
percentage-
 Knew of the option/Considered:
 the following dispute resolution options
 95%/51% -Litigation
 85%/40%- Mediation
 41%/22%- Self-divorce

15.  Better outcome
 Focus on Client's priorities
 Less confrontational
 More respectful
 More Client control over outcome

16.  - Needed legal representation
 - Client's spouses wanted CP

17.  Was CP considered by CP disputants to be
expensive or not for the outcome?
 81% reasonable- Disputant’s own atty.
 79% reasonable for MHP's
 81% reasonable for FP's

19.  CP: 90% settled; 75% of all disputants were
somewhat or extremely satisfied with CP
overall
 Litigation: 30% of all "winners" were satisfied;
70% of "winners" not

20. Schedule I- Community Assets
D isposition/ Va lue Propose d by: D ra ft CL Stlmt. T ria l R e sult D iffe re nce
Ite m H W H W H W
Real Property
Total Assets $190,654 $190,701 $163,165 $104,430 ($27,489) ($86,271)
Schedule VI- Summary
Community Property
D isposition/ Va lue Propose d by: W ife -CP
H W
Ite m
Combine d SP & CP Equity $190,677 $190,677 $67,130 $200,465 ($123,548) $9,787
Spousa l Ma inte na nce Awa rd ($150,000) $150,000 ($135,000) $135,000 $15,000 ($15,000)
Post Se conda ry Awa rd ($200,000) $0 ($175,000) ($25,000) $25,000 ($25,000)
Post D OS R e concilia tion $11,270 ($11,270) $0 ($11,270) $11,270
GR AN D T OT AL ($148,053) $329,407 ($242,870) $310,465 ($94,818) ($18,943)
Litiga tion Costs $5,000 $5,000 ($23,000) ($32,000) ($28,000) ($37,000)
T OT AL ST LMT . & T R AN SACT ION COST S ($143,053) $334,407 ($265,870) $278,465 ($122,818) ($55,943)

22.  Facilitated
 Problem-Solving
 Mutual Decision-Making
 Processes

24. Tesler's Simplified Flow
Chart

26.  Basic Communication & Listening Skills
 Basic Facilitation Skills

27.  Paraphrasing; Mirroring; Reframing
 Listening for Feelings
 Encouraging; Drawing People Out;
Participation Opportunity Equalizing
 Intentional Silence (Think "Groan Zone")
 Mutualizing, Normalizing; etc
 "Switch Moccasins" tools (Empathy tools)

28. The “Groan Zone”

29.  Task & Morale (Substantive/Psychological)
Functions
 Agenda: Creation & Management; Getting
Consent; Issue Reframing
 Translating Positions into Interests: What
Want, Why
 Option Generation: Brainstorms; Listing Ideas;
Anonymous Written Ideas (Groupware)
 Post-Brainstorm Processing: Prioritizing
(Straw Voting); Taking Turns; Merging &
Categorizing

30.  Discussion & Evaluation: Why/What/How-
Positions to Interests to New Ideas; Groan
Zone
 Recording: Summarizing; Note-taking; Digital
Recording

31.  Take Away Lesson: Don't fail to have a Final
Mtg.; get the agmt. & consent of the parties
"on the record“
 2010 Div. III case re mediation agmt. w/o
writing & w/ admission enforced as CR2A
stipulation/Agmt.
◦ In re the Matter of the Parentage of: PIPER ALDEN, ELLEOT ALDEN,
SARA BURNS, Appellant,and RYAN HODGE, Respondent. No. 28638-0-
III Court of Appeals of Washington, Division 3. (December 2010)
◦ In re Marriage of Ferree, 71 Wash.App. 35, 856 P.2d 706
Wash.App. Div. 2,1993.

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

34.  YouTube:
◦ Findlaw: CP & Mediation:
http://www.youtube.com/watch?v=Vo3bhglXkKs&feature=related 2:04
◦ Today Show on CP:
http://www.youtube.com/watch?v=R61fCemn9Ls&feature=related 7:22
◦ Seattle CP Interview:
http://www.youtube.com/watch?v=_8Wk_SGu15s&feature=related 9:33
 IACP Video w/ Webb & Ousky
http://www.collaborativepractice.com/_t.asp?T=Videos 20:00