A new report* issued by the international Global Pound Conference suggests that business owners, managers and in-house legal counsel should rethink their strategies in legal disputes if they want to save not only legal expense but also soft costs (such as staff involvement in litigation as witnesses and information collectors) and, further, to reduce litigation risks.
Some highlights from the report are:
- Efficiency is a key priority for business in choosing dispute resolution processes.
- Companies expect their advisors, including lawyers, to be more collaborative than they currently are in pursuing resolutions to disputes.
- While in-house counsel are agents for facilitating organizational change, external legal counsel are often obstacles to that change.
A Word Cloud analysis of comments provided by respondents in the GPC study includes an interesting assessment of responses to this question: “What words would you use to describe the most common impediments that keep parties from resolving their disputes?”
Some of the common answers include the words “ego/pride”, “unfamiliarity/misinformation”, “emotion” and “lawyers”.
The Global Pound Conference report suggests that many organizations recognize that more efficient dispute resolutions are possible. Our firm is keenly aware of and interested in opportunities to pursue faster, cheaper and more satisfactory resolutions to our clients’ disputes, and some of our efforts toward this goal are listed below.**
We’ve expressed this concern before, including in Kelly’s book titled Why Employees Sue: Rethinking Approaches to the Resolution of Employment Conflicts (Thomson Reuters, 2017). Although it might be counter-intuitive for private practice lawyers (including us) to highlight this issue, it is important for this subject to be considered. If not, improvements to the processes for resolving business-related disputes will occur more slowly than necessary and maybe not at all. While in Atlantic Canada we are blessed with a population of highly competent private practice lawyers, a finding in the GPC report is that lawyers worldwide may be reluctant to pursue mediation and other forms of high-efficiency dispute resolution due to a lack of familiarity with those processes (p. 16):
“Rather than rehearsing tired arguments about lawyers not promoting ADR for fear of its impact on their revenues, the data suggests that the underlying issue is more closely linked to something beyond training and education – familiarity. Have law schools and professional training regimes prepared today’s dispute resolution lawyers adequately for the role that Parties wish them to perform?” (Emphasis added)
What all of this suggests is that:
- Business people, including in-house counsel, can advance their organizations’ interests by helping to avoid the traps of “litigation familiarity”, “ego” and “emotion”; and
- Private practice lawyers can better help you to achieve your true organizational objectives by developing their own familiarity and comfort with mediation and other forms of alternative dispute resolution. These processes tend to generate more efficient results for clients, and efficiency is a common interest for many businesses who are seeking solutions to their disputes.
At Lawson Creamer, we are continuing our efforts to seek out the best and most efficient resolutions for our clients. Of course, we remain ready and willing to litigate when opposing parties and their counsel are position-oriented, and our courtroom record confirms that. But even within the litigation process, there are often mandatory or optional settlement opportunities, and our preference is that our clients get the benefit of the most efficient dispute resolutions possible. As the GPC report suggests, it seems that some businesses ignore the options that are in their own best interests. On that point, we have remained active in the executive leadership of the Canadian Bar Association’s Alternative Dispute Resolution Section, we are continuing to teach mediation and negotiation strategies at the university and professional levels, we’ve enhanced our own learning in institutions like Harvard and Cornell universities, and we are actively involved in the ADR Institute of Canada.
*you can see the GPC report at: http://res.cloudinary.com/lbresearch/image/upload/v1526381676/gpc_report_154118_1154.pdf
**The Global Pound Conference began 40 years ago as an international means of studying the effectiveness of civil dispute resolution. For this current 2018 study, the GPC surveyed 4,000 conference attendees from around the world: https://www.globalpound.org/2018/05/16/collaboration-is-the-way-forward-says-report/