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

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

3 PerspectivesDecember 19, 2008

What High-Low Agreements Can Do for You: Settlement Structures Part III

The fiscal year ends in just two weeks, and for some reason your client’s auditors keep focusing on that Acme Tool case. It’s been around all year, but somehow they won’t let go of Acme’s claim for punitive damages. You know punitives are out of the question and your opponent probably knows it, too, but accountants aren’t much for hunches. Since the case isn’t ready for settlement, Acme Tool’s claim makes its way to your auditor’s punch list for later discussion. Do you have a choice here?

You don’t have to settle the case to satisfy your accountants, your insurers and everyone else who might be alarmed by how much the other side has claimed. A high-low agreement can help you remove the potential for a runaway if you’re the defendant — and, if you are the plaintiff, you can use a high-low agreement to protect your downside and cover your costs while you focus on the heart of your case.

The High-Low Agreement Defined

In You Can Win by Settling Halfway: Settlement Structures Part I we discussed when it might pay to settle halfway — when you might resolve parts of a More…

Categories: Arbitration,Negotiation,Settlement,Structures

1 PerspectiveNovember 16, 2008

The National Arbitration Forum Blog: A Great Resource Turns Four

In September I wrote Come on In, the Water’s Fine to mark the end of this site’s first month in the blogosphere. While Settlement Perspectives’ 30-day anniversary was hardly the time for a memoir, it still felt like a milestone. But on Friday I ran across The National Arbitration Forum Blog’s most recent post: Celebrate the National Arbitration Forum Blog’s 4th Birthday. Four years of great content. I am truly impressed.

The Forum’s Fourth Birthday Post lists “some of the most talked about posts of the last year,” and it links to some good ones.  I’ll say “Happy Birthday” by doing a bit of the same from my own perspective — the following are a few of my favorite posts from the past four years at The National Arbitration Forum Blog, in no particular order: More…

Categories: Arbitration,Blogging,Education,Fundamentals,Mediation,Miscellaneous