Dispute Settlement Counsel

Archive for the ‘Preventive Law’ Category

In our last blog post, I suggested the good sense idea of having a primary care lawyer in one’s team of trusted advisors, as one would have a primary care physician, an accountant, a business or personal coach, and for some, a financial advisor.  There are, as we discussed, many advantages to having trusted legal counsel on board, someone who knows your business and family circumstances well, knows your priorities and goals, your disposition and who can give you good preventive and proactive advice, before you decide which legal path to travel.

Some readers pointed out that while that would be practical and helpful, unlike a primary care physician, which is most often covered and included in one’s medical benefits and health insurance, legal counsel is not usually included among the benefits offered by companies.  It’s an out of pocket cost to the user/client, one that many just can’t afford to include in their budgets.

That good point got me to thinking two thoughts:

1.  Yes, it is a costly service to add trusted legal counsel to a person or family or small business budget, but in the long run, it will most likely save hundreds, if not thousands of dollars.  It’s similar to paying a little more for organic food or fresh produce from small family farms as part of our preventive health approach to our bodies.  My grandfather, one of the wisest men I ever knew, used to teach us that there were two places you should never cut costs:  Food and shoes.

2.  Maybe companies and employers should consider offering this benefit to employees, something small that the company may not need to buy insurance to cover.  They should do it not only because it’s a good benefit to offer to their employees in trying to do right by them, but also because it’s probably going to be a cost savings to the company, for the very same, preventive, proactive reasons as it saves a person money.  When people utilize preventive law and avoid litigation, they not only save money, but also save time, time that would be taken off from work to attend to the demands of litigation or bigger legal problems. People also avoid the stress and emotional drain, the sense of being worn down by a legal dispute, especially one that goes into litigation.  These factors directly impact a person’s mental and emotional well-being and one’s productivity, energy level, focus and concentration in the workplace.  The combined cost of time off and unproductive, distracted work from an employee who is preoccupied and consumed by litigation is significant and detrimental to the workplace.

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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 »

Most people involved in a dispute think the first step to resolving it is filing a complaint in court and commencing litigation.  Then, you basically turn the case over to your lawyers and wait to hear good news from them about the results.  Those unschooled in litigation think that very shortly after that, the case will settle, because “all cases settle”, and they will get a nice chunk of money without much time, cost or trauma.

Others think that within a time about as quick as you can pick up your remote, turn on one of many weekly series’ involving trials, and watch the show, your case will be tried, your lawyer will stand up and make some charismatic closing argument like the ones on TV, and your “slam dunk” case will be won.

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I had a job interview this week.  It was not my dream job, but it was a paying job, which is enough to cause this third-year law student to pay attention.  The interviewer wanted to discuss my experience with alternative dispute resolution (“ADR”).  I am earning a Certificate of Dispute Resolution in addition to my JD. I also intern with the Massachusetts Collaborative Law Council, so I have some interest with various forms of ADR. 

As I enthusiastically explained my viewpoint on the strengths of mediation and other ADR processes and why I think they are advantageous to clients, he interrupted me with a knowing smile and said condescendingly, “Yes, but I like going to court.”  He then went on to explain the thrill he gets from the entire litigation process…and I zoned out.

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Business disputes, especially those involving small closely held or family businesses, almost always include relationships that are ongoing and need to be preserved, and often arise out of issues and unmet interests and needs that lie beneath the surface of the stated positions. 

For these reasons and others set out below, Collaborative Law and other non-adversarial approaches designed to resolve business dispute early have been providing value to parties who have used these methods to solve their disputes.  In addition to the need to keep business relationships healthy, there are other practical reasons that favor the use of a collaborative process and approach: cost and time efficiency, confidentiality, and the ability for the parties to determine their own options for resolution.  For family businesses, mission-based, non-profit organizations, entrepreneurial and social enterprise businesses, the cost, time spent and collateral damage of the litigation process would be devastating to their business goals, operations and budgets.  Collaborative process approaches have delivered good results.  

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