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10 things to think about BEFORE you decide whether to litigate and which lawyer to hire

by Michael A. Zeytoonian

August 2018

Dispute Settlement Counselby Michael Zeytoonian.

Michael A.  Zeytoonian

You have been wronged or wrongly accused of something and you are upset about it. You are angry with the party that did this to you. All kinds of emotions rush into your head, direct from your heart, without checking with your mind first:

I want my vengeance. I want to get back at ____ for what ___ has done to me.

This is so wrong. It is just wrong and it needs to be fixed. They need to pay for this. I want my day in court. I want and need to be heard. I want my rights restored or upheld. I want them to feel some pain. He/she/they can’t get away with this. I have been treated unfairly. I have not done anything wrong.  

 These are common feelings people have when they believe they have been violated or wronged. You were sexually harassed, discriminated against, bullied, mistreated, acted upon unfairly and for no lawful reason, someone breached a contract or an agreement, or did not deliver on a promise, a commitment, a deal, someone else got what is rightfully yours, accused you of something without basis for it, and so on.

You have emotional needs that must be met, including possibly staying in the conflict mode with the other side for a while. Behind those emotional needs, there are more pragmatic needs. You’ll get to those later, once you are ready for them.  But not yet.

When we are driven by these feeling, we act impulsively. We make decisions with our emotions, not our rational mind. It’s hard to put the brakes on when the option being dangled in front of your angry eyes satisfies your immediate emotional needs. These are the responses you want to hear right now:

“We’ll get that SOB and make him/her/them feel the pain.”

 “You should sue their ___. Then you’ll feel vindicated.”

  “We will get you justice.”

 “You need to find some pit bull lawyer to fight for you and destroy the other side.”

 “We will initiate some scorched earth litigation and not stop until we have cleaned out the other side’s bank accounts.”

 “We won’t rest until we have gotten you every dollar you deserve.”

These responses feed your emotions. They make you feel good. For a while. After a year or two of going down the litigation road, that short term good feeling wears off. The checks to the law firm pile up into thousands of dollars. The important business or personal relationship you once had and enjoyed has been damaged or destroyed. Every piece of email, text message and writing in all your electronic devices – your cellphone, tablet, laptop, desktop and hard drives have been scoured and put under a microscope, for all to see. You are just drained and are asking yourself, “Why am I doing this?”

You think about opportunity costs: “What I could have done with the two years of effort and energy and the thousands of dollars instead of this litigation? And then comes the other thought that counterbalances the opportunity cost notion: “I’ve invested all this time and money and energy and resources into this case. I can’t stop now; I have to see this through to the end.”

You now have two possible outcomes ahead of you: win-lose or lose-lose. At this point, the potential for win-win is gone.

The chance for a win-win was there once, back at the beginning of the dispute. Let’s go back there and before we start letting our emotion make our decisions for us, think about these 10 things:

  1. Is the relationship with the person or entity I am in this dispute with important to me, personally, business-wise or both?
  2. 97% of the cases that get filed in court settle and never get to trial. So what dispute resolution process can help me get my emotional needs met? What will give me the chance to be heard, to feel vindicated and validated, to be able to say what I need to say and have the other side listen?
  3. What approach will let me continue the engage in the conflict as long as is needed, but in a productive, efficient and protected way?
  4. Do I want to have control over both the process we use and the decision making as to the final outcome or would I rather turn that duty over to some other third party I don’t know and who doesn’t know me – like a judge, a jury or an arbitrator?
  5. How quickly do I need to get this matter resolved so that all involved can get on with our lives and our work?
  6. How much money can I afford to spend/do I want to spend on this process and if I didn’t spend it all on this process, what else could I be using that money for?
  7. If I need a creative solution to meet some of my interests and needs, what process has the ability and agility to come up with this kind of creative outcome?
  8. Is maintaining confidentiality and privacy important to me (and all those involved)?
  9. Is it possible for me and the other side to work through this dispute together, with the help of professionals trained in resolving disputes – collaborating and/or negotiating in a structured process?
  10. Have I educated myself and considered all the process options available to me before I choose which way to go and what kind of lawyers, mediators, and experts, to hire to reach the best outcome possible?

It is vital for anyone in a dispute to do a dispute assessment and think about these 10 things before they start down any course of action and before they hire any lawyers or mediators to help them resolve the dispute. No lawyer can ever guarantee any outcome. But doing a process assessment first will certainly give you the best chance for a good resolution and a win-win result.

Michael A. Zeytoonian is the Founding Member and Director of Dispute Resolution Counsel, LLC and is a lawyer, mediator and ombudsman. He is formerly a partner and now Of Counsel at Hutchings, Barsamian, Mandelcorn & Zeytoonian, LLP, in Wellesley Hills, MA. He specializes in employment law, business law, special education law, mediation, collaborative law and administrative law. He is admitted to practice in the state and federal district courts of Massachusetts and New York (Southern District) and the state of Connecticut. He has served as a mediator on the MWI panel in the district courts and on the BBA panel in the Boston Municipal Court.

He is a member and Massachusetts Bar Association and is chair of the MBA’s ADR committee and a member of the labor/employment section. He is a Past President (2006-2007) and member of the Massachusetts Collaborative Law Council, the International Academy of Collaborative Professionals and the New England Association for Conflict Resolution. He writes frequently on collaborative law and alternative dispute resolution (ADR) and has trained lawyers and presented in collaborative law and ADR around the U.S., Canada and Ireland. He has lectured at Northeastern University School of Law, Suffolk University School of Law, New England Law Boston, UMASS School of Law and Roger Williams University School of Law.

He served as Assistant Attorney General in the Office of the Attorney General of the State of New York, as a deputy overseeing litigation in the State Counsel Bureau in Westchester, Rockland and Putnam Counties and working on consumer advocacy cases. Prior to his work at the Attorney General’s Office, he was an Assistant County Attorney in the Westchester County (NY) Law Department, in the litigation and family court bureaus. His litigation work at both the County Law Department and the Attorney General’s office included cases in employment; labor; state, county and local municipal matters; environmental law; construction, administrative and tort law, and the prosecution of child abuse and neglect cases. His undergraduate education was at Boston College and Iona College, where he received his Bachelor of Arts degree is history and education. He earned his J. D. from Pace University School of Law with a Certificate in Environmental Law in 1990.



Website: www.disputeresolutioncounsel.com

Additional articles by Michael A. Zeytoonian
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