Author Richard Solomon is a conflicts and crisis management lawyer with 50 years of experience in business development, antitrust and franchise law, management counseling and dispute resolution including trials and crisis management.
What is frequently missed in difficult situations is the opportunity to save what conflict will destroy, through the use of a collaborative approach to resolution. By this I mean something far more nuanced than the simple demand letter telling its recipient to fish or cut bait on deal/relationship busting issues.
Some of the reasons why a professionally nuanced collaborative approach to difficult situations is not used most of the time include the attitudinal need of the “wronged” party for vindication and the incentive for its lawyers to stimulate conflict for the reason that conflict is a wonderful fee revenue enhancer.
This second reason is so strong in actual practice that it is the policy of many companies to use separate counsel for collaborative dispute resolution and provide in the retention agreement that if collaboration fails, that lawyer will not be retained for the litigation. Eliminating the litigation incentive from the retainer agreement is thought to be a quality assurance protocol.
Even where the die has actually been cast, it is often felt worthwhile to engage separate counsel to seek a collaborative resolution to a difficult situation. Litigation counsel tend to convey more of a confrontation face, and are inherently less credible in the dual role. That is not always true, but it is very often true.
Collaborative dispute resolution is most often used, and is proven to be successful in saving money and avoiding tragedies in family law situations. It is equally as valuable in any business dispute situation, and is becoming a more popular approach.
Especially in these more challenging times, salvaging important relationships at the moment of potential confrontation is an enormous value option that should not be rejected out of hand.
To be sure, there are intangible barriers to this approach. Frequently attitudes have become hardened in the course of communications that have lead up to being currently in termination/litigation/arbitration mode. It takes real commitment to make things work rather than tear things apart in order for effective collaboration to take place. Often this includes moderating attitudes strongly held about rectitude and business principles, in favor of optimizing future productivity. Often one side has alternatives that seem to make burning this bridge seem like a revenue enhancing thing to do, and sight is somehow lost of the value of arriving at a solution that enables both options. Deals are often better revised
Bottom line consideration of cost and time savings should make collaborative approaches extremely attractive. Serious business litigation today often calls for really big budgets and long periods of unrest. Collaborative resolution, where successful, saves most of that huge expenditure and difficulty.
Principles are important. One of the most important business principles is to promote wherever possible the future prospects of every valuable relationship, in spite of sometimes very trying circumstances.
We offer this service as a discrete part of our practice, and our 45 years experience dealing with business emergencies and difficult situations enables us to bring your company this valuable approach at a high level of capability.