Dispute Settlement Counsel

Archive for July, 2010

Have you thought about having a primary care lawyer (PCL) among your team of trusted advisors, the way you have a primary care physician, or financial advisor or accountant?

Most of us have a primary care physician (PCP), a trusted medical advisor, the first person we turn to when we have a medical situation, illness or injury.  Before you decide what approach to take, what kind of medical specialist you’ll need to see, you begin by going to your PCP and asking him/her to assess your situation.  Your PCP has the advantage of knowing you well, knowing your medical history and as a result, he/she is in a better position to assess your situation and give you tailored advice.  You also have the extra security of knowing and trusting your PCP.

If you are a small business or a family business, a non-profit organization, a social enterprise or entrepreneurial business, why not have the same kind of trusted advisor in your legal world?  There is great value to having a lawyer that knows your business well, that understands the goals and interest of your organization, knows how you think and approaches situations in a preventive, proactive way.

Let’s take that analogy to medicine one step further?  If you had a back problem, would your first call be to the orthopedic surgeon to start preparing for surgery?  Of course not.  Orthopedic surgeons, like trial lawyers, are masters at their craft.  I have the utmost respect for mine.  But he is my last call; not my first one.  There’s a time and a place for surgery and that is only when you have tried every other less-invasive, less risky, less life-altering approach or when nothing else will work.  Only when those efforts fail do you turn to the surgeon as a last resort.  Litigation should be looked at through the same lens: only as a last resort, when the other less damaging, less risky, and less intrusive procedures have been tried first.  You can always turn to the courts or an arbitrator if your non-adversarial, solutions-based efforts don’t succeed, or when your primary care lawyer advises you that in your circumstances, you need to litigate.  But it’s very difficult and very ineffective to try to switch to a non-adversarial, solutions-based approach after you have been embroiled in litigation for a couple of years and spend thousands of dollars. Read the rest of this entry »

I’m often asked how case evaluation is used to resolve a dispute.  The best way to explain is to tell about a case that was resolved using a case evaluator/mediator.

One important prerequisite is that the parties to the dispute – and their lawyers — have to want to resolve the matter quickly and approach it like a problem to solve, not a fight over who is right.  This is sometimes driven by the nature of the case, or by the ability of both parties to see that their interests are not best met by prolonged, expensive and cumbersome litigation.

In this homeowner-contractor dispute, both parties needed to get the issues about payment and continued or discontinued work resolved quickly.  The homeowners’ family life was being disrupted the longer the dispute remained unresolved and the contractor’s ability to earn more money and deploy his resources effectively hung in the balance.   Both lawyers realized that neither client would benefit by the costs and length of litigation, and the matter was not a clear cut case in which one side was clearly right.

I suggested the use of a neutral case evaluator, a lawyer very well versed in construction cases, both with respect to the relevant facts to focus on as well as the state of the law as to these kinds of disputes.  To his credit, my counterpart counsel agreed to put any litigation on hold and we were both able to persuade our clients to try this approach.  There was one procedural snag:  the contractor had put a mechanic’s lien on the house and needed to file a complaint within 90 days to prefect the lien.  We agreed to allow the contractor to file the complaint in order to preserve his right to the lien, and then there would be a standstill agreement and a hold on the litigation to allow time to work with the case evaluator.

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