Success in business dispute resolution requires creativity in crafting strategies and tactics that have the best chance of bringing the parties cost-effectively to either:
- A negotiated settlement that satisfies in whole or in part their business objectives. It takes two willing dancers to Tango and settlement requires two willing parties to settle a dispute. Negotiations may occur directly between the parties or with the assistance of a mediator. Negotiations may occur , even after a jury verdict affirmed on appeal by the highest court;
- A final judgment of a court of law, resulting from a judicially confirmed award of an arbitrator, or a judge’s order or a jury’s verdict subject to any appeal.
- A decision to leave the dispute unresolved.
The advantage of a settlement is that it puts the parties in control of their destiny because they must agree. Understanding statistics vary based upon many factors, fewer that about 5% of a litigated matters are not settled.. Settlement may be late , such as settlement after a jury verdict while it is on appeal. That means before we start, we know the highest probable outcome is settlement.
The Playbook in Dispute Resolution is as Big as the Imagination of the Players
Success depends upon an endless laundry list of factors that influence settlement such as:
- Personality and patience of the parties and lawyers.
- The willingness of parties to accept the risk or a resolution likely to be an “all or nothing” outcome decided by an arbitrator or a jury.
- The capacity of the parties to pay for seeing an arbitration or jury trial to a final conclusion at some unknown point.
- The ability of a party seeking only money damages to retain a lawyer on a contingent fee basis in return for a large portion of any actual recovery.
- The need to for business reasons to establish a legal principle or avoid caving in to the particular claim because that may lead to a flood of similar claims.
Business dispute resolution passes essential stages that have few rules, and an possibly expanded playbook. You cannot resolve a dispute you do not understand, so some fact gathering must occur to get starte. Aside from rules against destroying or tampering with evidence or witnesses, there are few laws governing the fact-finding process. The parties and their counsel have extreme flexibility at the investigation stage.