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Dispute Resolution drops the ‘A’

Issue May/June 2016 By Anna Sims

Newest MBA section reflects growing field

Out-of-court dispute resolution is no longer just an alternative form of resolving legal matters, according to members of the bar and bench alike. It's also the focus of the Massachusetts Bar Association's newest section.

Officially approved at the MBA's March House of Delegates meeting, the Dispute Resolution Section is in many ways a natural evolution of the MBA's own Alternative Dispute Resolution (ADR) Committee, which has been active for many years. To reflect the field's increasing and more mainstream use, the Dispute Resolution Section title stands without the familiar "A" for "alternative" that was included in the name of the committee.

"Over the past 25 years, really no area of practice has grown to have a wider impact on legal operations than dispute resolution," said Brian Jerome, current chairman of the ADR Committee and founder and CEO of Massachusetts Dispute Resolution Services. "Studies show that about 97 percent of all civil cases which are presented result in settlements and never reach trial. What this really means is that dispute resolution has evolved to become the primary means of case management -- and not the alternative."

According to The Law Dictionary's website, 95 percent of pending personal injury lawsuits end in a pretrial settlement, while legal news site Above the Law reports that only 1.5 percent of civil cases in Massachusetts make it to a jury, Jerome said.

It was these numbers, as well as interest from its members, that led the MBA to create the first section for dispute resolution in the state. "The Massachusetts Bar Association has a really fantastic reputation for professional excellence. … It is fitting that the MBA continues to support evolving legal industries like dispute resolution," Jerome said.

Also, unlike the standing committee, the DR section will be open to all MBA members -- an important change that will facilitate greater outreach and service, Jerome said.

MBA Chief Legal Counsel and Chief Operating Officer Martin W. Healy said the new DR section will provide members with better resources, as well as "excellent" opportunities to network and "perhaps gather new skills." Vivian Hsu, ADR committee member and principal of Hsu & Associates LLC, said she believes the section will provide "greater recognition for dispute resolution as a profession and not as an add-on," as well as more engagement with MBA leadership.

Exponential growth

The section, which will officially launch Sept. 1 at the start of the 2016-17 membership year, is expected to build off of the working groups that the ADR committee founded. Those groups include the Judiciary Outreach Group, which works with judicial leadership, judges and clerks to encourage the use of court-connected DR; the Best Practices Group, which provides programming for practitioners, attorneys and law students on topics that arise in actual dispute resolution practice; and the Law School Outreach Group, which offers seminars, presentations and mock mediations and arbitrations to students, professors and administrators at each law school in Massachusetts.

The Law School Outreach Group's very existence is a strong example of the increased status of dispute resolution in recent years, according to Sarah Worley, ADR committee member and principal of Sarah E. Worley Conflict Resolution P.C.

Indeed, the dispute resolution field itself has evolved and expanded from the traditional mediation and arbitration services to more than a dozen services (see related sidebar).

"When I started practicing law in Massachusetts 25 years ago, this concept [of dispute resolution] truly was an alternative," Worley said. "The whole notion of DR was not taught in law schools. There were no programs put together by any bar association. Part of the reason was there were very few people who actually were mediators or arbitrators full time. Over the years, the concept picked up traction. As attorneys and litigants became frustrated with the pace of court system, the demand grew, and the field of providers grew exponentially."

Jeffrey N. Catalano, MBA president-elect and partner at Todd & Weld LLP, also cited the speed of dispute resolution as one of its many benefits.

"Often times, [dispute resolution] resolves a case sooner, more efficiently and less expensively than going to a trial," Catalano said. "There's no scheduling difficulty. If you pick a date, that's set in stone - especially for arbitration. Nothing's going to get changed on you the week before. With trials, it sometimes happens that you get a date, and then all of a sudden it gets postponed for a year or more, which can be frustrating."

While dispute resolution offers a firm date, it gives participants flexibility in nearly every other aspect of the process, Worley said. "Dispute resolution gives parties the opportunity to create the best environment in which they can resolve their particular case," she said. "The parties have paramount control over who to work with as a neutral. They can control location. They can control time. For people who would find it stressful or impossible to get to one of our courts, dispute resolution can take place anywhere." Worley has mediated cases at someone's house, a hospital and a nursing home.

Catalano noted that "lawyers should never forego entirely the opportunity to get to courts and try cases. Learning how to try cases is a dying art. In order to arbitrate a case well, you need to know how to try a case well. … If you're going to mediation, and you haven't tried a lot of cases and aren't that experienced in courts, that's going to affect how the other side acts. They'll know you don't want to go to a trial."

Healy also acknowledged the importance of utilizing both dispute resolution and the court system. "Not every mediation will be successful," he said. "But at least it's the first really serious look at a case and trying to give parties an idea of the positives, the negatives and the drawbacks to their case."

Massachusetts Superior Court Associate Justice Dennis Curran, who called the topic of dispute resolution his "favorite judicial subject," said that he enters an order to consider mediation to the parties in his courtroom whenever possible.

"And you know what? It works. Most of them, once they sit down with their lawyers, agree to mediation," he said. "And if I send that case to [an in-house mediator], there's a 79, 80 percent chance that case will settle. Four out of five times, I will never see those cases again."

For parties that opt to use a private mediator, the settlement rate becomes 95 to 99 percent, he said.

Curran listed several reasons that he supports dispute resolution, including the large amount of money it can save clients.

"Look, most people don't want to be in the legal system," he said. "Most people don't want to go to court." He also called it a "common sense" way to help judges resolve the hundreds of cases filed each civil session. Curran referenced "The Trial Judge," published in 1937 by former Associate Justice of the Massachusetts Supreme Judicial Court Henry T. Lummus, in which he prophesied that judges of the future would function more as "managers" and would need new tools to manage their heavy caseloads. Dispute resolution, Curran said, is one such tool.

Back in the present day, both Worley and Hsu commended Jerome and the ADR Committee for their work in championing dispute resolution as a section. Jerome is eager to see the results of the hard work in the fall.

"We're really looking forward to launching our section and hope to be the primary resource of collaboration, outreach and service for the entire DR industry here in Massachusetts," he said. "We're very excited to be given this opportunity by the Massachusetts Bar Association."