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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
than trashed.
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.
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