It is said that only 10% of an iceberg is above water. Having watched icebergs off the coast of Greenland and the Antarctic Peninsula, I believe this is true. It is also my belief that parties to disputes are often unaware of 10% of relevant data when disputes begin, and frequently less than 10% of the true facts are immediately obvious to attorneys. For this reason, it is necessary for parties to have an opportunity to see just how deep the dispute goes and how far they will have to explore to know the truth.

In litigation, finding the truth can be a very difficult and worrisome task.

In litigation, finding the truth can be a very difficult and worrisome task. Attorneys will regularly tell clients not to speak to the other parties. This eliminates the possibility of parties clearing up a lot of the misunderstandings on their own. Next, communication is often limited to a “he said she said” flow of information that goes from client to attorney, to the other party’s attorney, to the other party and back again. If there are more than two parties the confusion and misinformation is able to grow exponentially.

Get on your mark, get set, and the discovery process begins. It is time to pull out the wet suits and dive as far down as possible to see how deep the iceberg goes. Below the waterline, exploration becomes dark, much colder, and unfriendly. It is at this point the attorneys begin using their tools to chip away at the iceberg looking for answers and hoping that one of the tools will split the iceberg wide-open resulting in victory.

Requests for admissions usually do not yield much, but it is still a tool occasionally employed. Next, the attorneys bring out interrogatories which can be answered in ways that disclose very little, or the responders will not answer some questions at all. This usually results in the “asking party” filing a motion requesting the Judge to force the “other party or parties” to reply to the questions that were poorly answered or not answered. Subsequently, there is a hearing and all of the attorneys must go to the courthouse where the “asking party” may or may not obtain more information, but this will accomplish more attorneys’ fees for all of the parties.

Production of documents and tangible things may yield a shard from the iceberg; however, usually the “requester” will end up with many, many ice cubes to search through hoping to find a bit of evidence. Should the “requester” not be satisfied, there is always the option of going back to the courthouse in an attempt to force production of things that may or may not exist. Last of all are depositions where the lawyers play all kinds of games, and comparable to the iceberg, less than 10% of the recorded information is useful, but the attorneys charge for 100% for their time.

In most collaborative cases parties will spend 10% of the time, money, and stress that they would have spent in litigation.

Icebergs sink ships and are extremely unmanageable, so why not stay above water where face-to-face meetings can allow the voluntary exchange of information, and transparency is possible? In most collaborative cases parties will spend 10% of the time, money, and stress that they would have spent in litigation. The collaborative process is not for everyone, but for those who will go forward honestly and in good faith, it is an opportunity to resolve disputes in a courteous manner and preserve important relationships. Speak to a collaborative professional today at Attorneys Without Litigation to find out if this is a possible course of action for you.

For more information, contact Sherrie Abney.

Spread the word. Share this post!

Comments (1)

  1. Reply

    You only see 5 to 10% of an iceberg, so what is below the surface? In the collaborative process you get a good look at the entire iceberg (problem.) In litigation, you never know what could be hidden beneath the water– perhaps there are facts that the other party does not want you to know.. There is no transparency in litigation; however, transparency is what collaborative law is all about.

Leave a comment

Your email address will not be published.