It is hard to believe that our lives have been altered so dramatically and so quickly. As this year began, who had even heard of the coronavirus or COVID-19? Since then everything seems to have changed. Schools and businesses were closed, stay at home proclamations issued, most events from concerts to weddings cancelled or postponed. For anyone attempting to resolve a legal dispute, most in-person court proceedings, as well as discovery proceedings and mediations, were postponed. Even as the crisis subsides, there will be much catching up to do.
While much of the suffering and dislocation caused by COVID-19 will be difficult recover from, in some areas of our lives, steps can be taken to address pressing problems without delay. One such area is in dispute resolution where the parties and their counsel choose to resolve disputes using the collaborative process.
The collaborative process occurs entirely outside the court system. There is no reliance on courthouses, judges, juries, or public filing of documents. There is no need for depositions, mediations, or other in-person proceedings. Instead, the parties and their counsel agree to a process called collaborative law which puts them in complete control of all proceedings. Everything takes place at a time and place agreed to by the parties themselves. There, the parties and their lawyers trained in the collaborative process sit at a table together and work towards a mutually agreed solution to the shared problem that divides them.
Together they agree on an exchange of needed information. They may determine that an expert opinion is needed—say from an accountant or engineer—and agree on who they think would be able to provide the most reliable information. The cost of this neutral expert is shared by the parties. Rather than taking hard positions and making demands, they discuss their real needs and interests and brainstorm over ways to resolve their dispute.
The end result is a settlement agreement that is truly “owned” by all parties because they have been instrumental in reaching that agreement. The lawyers are completely dedicated to reaching a resolution out of court and agree that they will not serve as litigation counsel if the matter ultimately goes to court. Typically, the entire process takes a mere fraction of the time or expense of a court proceeding.
Suppose, for instance, that Company A has hired an employee away from Company B. Issues may arise regarding proprietary information and trade secrets, customer relations and goodwill, and the investment Company B has made in training the employee, all of which may be the subject of a covenant not to compete. If this dispute goes to court, all three parties will hire lawyers who will spend the time needed to become fully acquainted with all the facts of the case (each learning at first only what their own client tells them). There will likely be a preliminary hearing, along with accompanying briefs, to determine what the status quo will be during the rest of the legal proceeding. This phase alone will cost each party many thousands of dollars and take weeks to complete.
Regardless of the result of that preliminary phase of the litigation, the parties will then each face the burden of exchanging large volumes of information, including copious amounts of emails and text messages, followed by depositions. Further motions may follow along with mediation, and then perhaps a trial and appeals. All of this could take years and many more thousands of dollars. The average cost of a business dispute in court is approximately $100,000 for each party; and at times the cost can be much more than that. After all of that, only about 3 percent of cases actually go to trial. The rest are either disposed of on motions or settled.
Suppose that instead of the traditional adversarial process, the parties agreed to use the collaborative process. Within a few days, they could agree to sit down and discuss what their concerns were. Suppose Company B had a definable list of trade secrets and customer relations to protect. Suppose Company A had encountered the employee in the regular course of its business and recognized a need of theirs that the employee could fill. Suppose the employee had no interest in “stealing” any information but was just looking for a better opportunity.
Might it not make more sense to sit down together and determine whether the needs and interests of all parties might be met? Perhaps Company A pays Company B some amount to compensate it for the expense it had incurred in training the employee. It might be agreed that the employee would not call on certain customers—or even that Company A would not call on certain customers for some period of time. An agreement might be reached that would protect trade secrets.
In the collaborative process, all of this might be accomplished in a matter of weeks and for a small fraction of the cost of litigation. Plus, the dislocation and inconvenience that litigation causes would be avoided altogether. The final settlement agreement would be enforceable to exactly the same degree as would be a settlement reached in litigation. And each party would be represented by counsel who, while committed to a collaborative resolution, would also be committed to helping meet their client’s needs and ensuring that their client’s rights were being protected.
Ordinarily, meetings that are part of the collaborative process take place in person. However, there is no reason they can’t occur online, either because of a major dislocation like the coronavirus crisis, or because a party or counsel is ill or cannot conveniently come to the location where the meetings occur. Using Zoom or similar online meeting platforms, any party or attorney could be in a separate space if necessary, while still maintaining the concept of being together to resolve their dispute. Collaborative allows all parties greater flexibility to manage their schedules and meet online to continue moving towards a resolution whatever the “new normal” turns out to be.
So, whether in the midst of COVID-19 or on the other side of this crisis, the collaborative approach to dispute resolution could literally proceed as though the crisis had never occurred. Indeed, it may become part of a new way of doing business, one that puts parties in control of the resolution of their disputes.
To learn more, or to find a list of collaborative attorneys, you can visit nccivilcollaborativelaw.org.
John Sarratt is an attorney with Harris Sarratt & Hodges in Raleigh and the president of the North Carolina Civil Collaborative Law Association.