Add Your PerspectiveMarch 19, 2010

Multi-Step Dispute Resolution Clauses: 7 Reasons They Work

As we have discussed before, the best way to spend less on litigation is to have less litigation. Yes, sometimes it is better to litigate, and yes, settlement talks are hollow if you can’t walk away from the negotiation table, but most clients prefer to avoid litigation when they can. So how do you accomplish that? The multi-step dispute resolution clause is a good start.

Back in my days as outside counsel I handled a major dispute for a Fortune 500 IT services firm involving one of its larger clients, and I got plenty of time to think about how, and why, tiered dispute resolution clauses work. As soon as I moved in-house, I added these clauses to KPMG Consulting’s standard contracts, and the results were outstanding — we litigated with our clients less and got back to business sooner. This post will give you a few reasons why you might want to include a multi-step dispute resolution clause in your next major contract.

A Definition for the Multi-Step Dispute Resolution Clause

The multi-step dispute resolution clause, sometimes referred to as an “executive escalation clause,” an “escalating levels of management clause,” or a “tiered dispute resolution clause,” is often discussed but not often defined. I define it More…

Categories: ADR,Arbitration,Mediation,Negotiation,Settlement

Add Your PerspectiveJune 26, 2009

UDR: An Introduction to Unconventional Dispute Resolution

As I have said before, if you really want to cut your litigation costs, step one is to have less litigation.  Step two, however, is just as important:  actively manage what’s left.  This post will explore a great way to do both — UDR.

We’re at a point where lawyers who are effective at getting cases settled are often thought to be afraid of trial, yet real trial lawyers often forget that their clients have more important business than litigation.  Which approach will you choose as your next case begins?  With Unconventional Dispute Resolution you can integrate both, so you don’t have to choose either — until the choice is actually yours.

What is UDR?

So what is UDR?  There’s no single element of Unconventional Dispute Resolution that’s truly new, but UDR combines 7 component parts in a way I haven’t seen before.  These elements — each of which is critical to the success of the whole — include:

1. Early Case Assessment
2. Aligned Fee Agreements More…

Categories: ADR,ECA,Miscellaneous,Settlement

3 PerspectivesJanuary 2, 2009

How Close Are We? Another Way a Mediator Can Help

Have you ever wanted to know what the other side really wants in a case?  They’re sure to posture and ask for one thing, but have you ever wondered what they’re really looking for before everyone gets further entrenched?  There is a way to find out.

I learned how you can tell if you and the other side are really that far apart in a dispute with one of the world’s more experienced defendants. We had met before and a lot of money was at stake, and sending a settlement demand to these folks would have been pointless — no matter what I demanded it would be too much. I suspected we privately valued the case the same way, but nobody opens a case with his bottom line position. We’d have to litigate for years to More…

Categories: ADR,Arbitration,Miscellaneous,Settlement,Tactics

9 PerspectivesDecember 12, 2008

The Mediator’s Proposal: A Great Tool For Yesterday’s Disputes

It was a hot Friday afternoon in Miami, and everyone but the mediator had a flight to catch. The lawyers on the other side knew what they were doing, but we weren’t closing the gap. Sometimes impasse is a good thing, but not here — four conference rooms and a reception area full of lawyers needed to settle, but our steady path to resolution had stopped abruptly. What was the other side up to?

As our mediation closed, the mediator made a proposal — a “mediator’s proposal.” I knew immediately why we had reached an impasse. As I look back on that settlement it’s clear that, as effective as mediator’s proposals might have been back in the day, they aren’t the tool More…

Categories: ADR,Mediation,Settlement