Nowadays, most litigators are increasingly looking to avoid the stress and emotions of going to court and instead looking to pursue ADR (alternative dispute resolution) via mediation or arbitration. They consider this to be a better, cheaper and more effective strategy to achieving the main objective of their client. To be done successfully, one needs a thorough understanding of not only all the appropriate ADR strategies, but also an adequate understanding of the law, and more specifically, business law.
To stand any chance of being successful, the one element that must be present at all times is trust between all parties involved. Additionally, all involved parties must disabuse their minds from the possibility of going to court to settle whatever legal business issue exists, as this will establish in their minds the thought that there is no other option of finding a resolution to the conflict, besides the ongoing ADR, and at such they all need to be willing accommodate and compromise in order to reach a mutually beneficial agreement or settlement.
Here are some basic things which a small business attorney NYC should know whenever they are participating in (or mediating) an ADR.
Avoid taking an adversarial approach
The adversarial nature of lawyers often encourages or even demands a win-lose mentality, especially when dealing with an opposing counsel. What is for sure is that such behavior only entrenches the opposition and encourages them fight harder to win. When it comes to ADR, this adversarial nature and environment should be eliminated at all costs, as it could easily, or even likely lead to a lose-lose situation for all parties involved. The over-arching guiding principle in any ADR setting should be for all parties to feel like they have won or gained something, and therefore, win-win situation. Therefore, the main objective of any lawyer towards his or her client should be to solve a problem.
Let the client know what you are doing
It’s highly important that the client knows everything their attorney is doing at all times during the ADR process. The client must always be informed so that he or she can stay on top of what is going on with the process and contribute relevant information and ideas that can help the process move along more smoothly.
Any tactics to be employed by the lawyer should also be communicated to the client, so that they are both on the same page and that contradictions come to the fore, which can jeopardize the process in favor of the opposing side. Effective ADR calls for both parties to find out what the other side wants, and a “satisfactory” result might leave clients on either sides feeling that their objectives haven’t been met. Collaborative resolutions of the disputes on the premise of trust that’s created in an interactive process of negotiation boasts the best chance of satisfying the goals of both sides.
Establish a budget
Through extensive consultations with clients, counsel must be able to establish the exact amount of money each client wants to spend in order to resolve the issue at hand. Higher initial costs might be acceptable if the eventual return on investment allows and justifies it. Sometimes, a simple legal problem can never stand up to the justification of needing to spend large sums of money to resolve it. However, most if not all business legal issues normally involve daily costs.
As we wrap up …
In a risk-sharing arrangement, when budgeting for ADR, there must be different budget milestones that are tied to successes. Certainly, the allocated budget can be for the whole case or just to the point of proceeding where negotiated settlements bring about excellent chance of success. The engagement goal is normally tied to a probability, as a bonus of success, if the process has remained within budget in order to get to the milestone.
Of great importance to note is the fact that different parameters normally define different outcomes of success. Lawyers and clients must work together in order to achieve the goals. By doing that, both parties will be able to benefit immensely in the end,