Dispute Settlement Counsel

Archive for the ‘Financial Considerations of Dispute Resolution’ Category

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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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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Business owners, managers and entrepreneurs have confirmed some core beliefs of the Zeytoonian Center for Dispute Resolution. They are telling us that the most important element in resolving disputes is preserving important business relationships! They are also telling us that the notion of “winning at all costs” is among the least important considerations in dispute resolution. That is encouraging news and helps to confirm our beliefs about what is critical in dispute resolution and that non-adversarial processes are more responsive and better suited to meet the needs of those involved in disputes. Read the rest of this entry »

Suppose I told you that if you want to resolve your dispute by suing and going to trial, it could take you two, three and maybe more years to get a verdict? Explain this typical litigation timetable to young entrepreneurs, and they’ll think you’re from another planet. Their typical response: “That doesn’t work for us.”

Or you review your recent bill from your lawyer – $600 for a status conference at court. You ask what the lawyer talked about at a two hour status conference @ $300 an hr. Your lawyer explains that he arrived at court at 9 am, the judge began calling cases at 9:20, 30 minutes later your case was called, both lawyers indicated that they were present. Twenty minutes later the docket call was completed, all those with status conferences were then directed to another courtroom upstairs, 10 minutes later another call of those present for status conferences was called and 20 minutes later you got in to meet with the magistrate or law clerk for a 20 minute status conference. Maybe, because your lawyer felt bad about this and didn’t bill you for the other hour he would normally bill you for the spent traveling to and from the court. It wasn’t your lawyer’s fault, and he had to get paid for his time, but you got 20 minutes of value for your $600.   Read the rest of this entry »

Tough Economic Times Call for More Efficient Dispute Resolution

I’m often reminded and amazed by how sensible and logical it is to opt for using certain forms of alternative dispute resolution.  But even moreso in these kinds of tough economic times, where people are searching for ways to cut costs and not sacrifice quality or efficiency, the good sense and logic of alternative dispute resolution (“ADR”) screams out to be recognized and understood.  Here are seven very compelling reasons why using ADR methods have serious advantages:

1.  Costs savings; 2.  Time efficiency;  3. Preservation of important business and personal relationships  4. Ability to design solutions tailored to the specific circumstances and situation; 5. Maintaining confidentiality; 6.  Sovereignty of the Client; 7.  Civility, Respect and doing it right.   Read the rest of this entry »