Litigation, by its very nature, is a lengthy, costly and emotionally draining exercise. While the actual financial cost of a court case is in itself often debilitating, the hidden cost exacerbates the problem. The loss of productivity, waste of time and energy, constrained funds to invest in R&D and creativity opportunities are often overlooked and hardly ever quantified. When faced with considerations such as these, the act of being consumed by litigation exceeds the actual financial expenses by far. But even if only the direct costs and risks of litigation are taken into account, it is in the interest of parties who are engaged in legal or other disputes, to try their best to resolve these disputes amicably and by means of a negotiated, win-win settlement. When this negotiation fails the parties can resort to taking their dispute along the adversarial path to court.
Many disputes, when detected early, can be talked through and resolved over a cup of coffee. If this is not possible or left too late, consider referring an unresolved dispute for facilitation to a common friend, community leader or business associate. Lastly, if that is also unsuccessful, use alternative dispute mechanisms to tackle the dispute and resolve it.
Harvard Law School professor Robert H. Mnookin, suggests five strategies to help you and your lawyers turn disputes into deals:
- In instances, of commercial or workplace disputes explore the possibility of engaging in a formal dispute-resolution process such as mediation before going to court. The presence of a neutral third party brings structure and formality to the process and can set the tone for resolution
- Prior to a mediation, prepare properly. Identify and express the various interests that pertain to your dispute, expand your thinking to include non-financial interests. If possible, encourage the other side to do the same. For example, if you feel wronged, you might ask for a formal apology, an action plan, or a demonstration that the other party is taking steps to make amends.
- Interrogate your lawyers. Ask your lawyers to systematically predict the outcome of a possible court case through decision-analysis tools such as decision trees. Button them down through opinion work so that you are able to make an informed decision based on a thorough risk assessment. Such analyses often illustrate that a negotiated settlement would be more beneficial in its outcome, and a far less risky and costly option for dispute resolution.
- Have a frank discussion with your lawyer about the needs of your business or organisation. Consider all your interests and concerns, including those that are personal and emotional. Too often clients allow their lawyers to focus exclusively on the black and white letter of the law but fail to address the underlying interests that are motivating the matter. Unfortunately this unwittingly narrows the possibilities for a negotiated settlement.
- Finally put your lawyer to task by using timelines, ultimatums and incentives. For example, you might promise your lawyer a financial bonus if he/she settles the case in a timely manner.
For advice as to when and how you can mediate or engage with a mediator, contact Chris (chris@chrisfick.co.za) or MC (mc@chrisfick.co.za) or visit www.aim-mediation.co.za to refer a matter to any of the AIM panellists.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.