Dispute Settlement Counsel

Part IV. Ability to design solutions for the specific situation February 14, 2009

(Happy Valentine’s Day!)

Here’s where ADR really separates itself from the limitations of arbitration and litigation and flexes it’s “think outside the box” powers. When there are several interests to be satisfied in a dispute and it’s about more than money, that’s usually a good indicator that your dispute, your situation and set of circumstances needs the creativity and flexibility of ADR processes like collaborative law and mediation.

Courts are designed to really only do two things: 1. Order one party to pay another party money (monetary damages), and 2. order one party to either stop doing something or direct a party to allow the other party to do something (injunctive relief). In business disputes, the court’s ability to quickly intervene and either stop a party from taking an action or allow a party to continue an action without interference can be essential and that is something most ADR processes are not designed to do. But just about everything else, including money payments, can be addressed by ADR methods and as we have already written about, addressed more efficiently and without the collateral damage of litigation. And here’s the fun part: ADR can be very creative, innovative and situational.  

In sexual harassment or discrimination cases, often one interest the wronged party has is the need for the company’s culture to change and correct the hostile environment. There is a strong need to see that some preventive mechanisms are put into place so the same thing doesn’t happen to someone else. A condition of the mediation we did in one such case was that the organization undertakes institution-wide harassment prevention training every year. I once had a client who felt she was terminated based on discrimination. She hired me in part because she said she didn’t really want anything for herself – she was confident she could get another job right away (and she did!). But she believed that two other employees were discriminated against on the basis of their disabilities. Her desire was that the company, in a private settlement, do something for those two employees, not for her.

For disputing parties in the breakup and restructuring of a business partnership, one of the partners would break off and form a new company. As part of the settlement, how the customers would be divided was an important issue. During Collaborative settlement negotiations, the parties worked together to divide up the existing customers between the companies in a logical way that made complete sense. It was also important that the news releases that went out after and the publicity reflected the creation of the new company in a positive proactive light, part of the collaborative settlement negotiation focused on drafting joint press releasing announcing the good news of the new company, and the continuation of the existing company.

Many things can be accomplished through creative mediating and collaborating: the timing of actions like evictions or terminations so they meet both parties’ interests, the shifting of duties or realignment of a business structure so that a talented employee is not terminated, but put where she fits better, the bringing in of another player in contractual disputes who is in a position to help both parties satisfy their needs, creative payment plans that both satisfy the paying party’s cash flow problems and the recipient’s tax liability issues, just to name a few. To give parties real and lasting solutions, rather than band aid responses that address a symptom but don’t sure the problem, that is deeper resolution. And that has great value to parties in a dispute who don’t want to revisit a similar scenario a couple of years later.

So when you are assessing which dispute resolution process will work best for you, think about the needs and interests you have beyond your anger and desire for payback. And then consider some of the wonderfully creative and agile methods ADR can offer.