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

7 PerspectivesMarch 11, 2010

Toward Better Client Service: A Few Questions for Outside Counsel

In a world of alternative fees, law firm convergence, the ACC Value Challenge and more, what does the client really want?  Is it lower fees, predictable expenses, more “value” for the company’s legal dollar, or something else? What’s the best way for a law firm to respond?  It turns out that clients are eager to share the answers to all these questions — all you have to do is ask.

A few months ago the lawyers at DrinkerBiddle did just that — they asked.  The firm invited a few of us with real experience as clients to the firm’s partner retreat to share our perspectives on client service.  They got what they asked for.

The Question Outside Counsel Don’t Ask Often Enough

As soon as we began our talk it became clear that I wasn’t the only one who had thought about the law firm/client relationship before we got there.  One of my co-panelists, P.H. Glatfelter Company’s GC Thom Jackson, started by sharing a simple question that outside counsel apparently don’t ask him often enough:  More…

Categories: Communication, Fundamentals, Miscellaneous, Settlement

Add Your PerspectiveMarch 4, 2010

A Settlement Lesson From “Switch”: Who Does Your Opponent Think He Is?

Longtime Settlement Perspectives readers know that I’m a big fan of Chip and Dan Heath. Their first book, Made to Stick, inspired posts back and forth with the authors on why you might not want to send a message in negotiation, and the rest of Made to Stick continues to color my view of message “stickiness” — a term the Heath brothers contributed to today’s communication lexicon.

With advance warning from Mitch Joel, I eagerly awaited my copy of the Heath brothers’ new book, Switch: How to Change Things When Change Is Hard. Like Made to Stick, Switch ostensibly has nothing to do with negotiation, but like its predecessor Switch backs into a settlement insight important to all of us.

The Identity Model of Decision Making

As with most concepts, Switch defines the identity model of decision making early on:

In the identity model of decision making, we essentially ask ourselves three questions when we have a decision to make: Who am I? What kind of situation is this? What would someone like me do in this situation? Notice what’s missing: any calculation of costs and benefits.

According to the Heath brothers, “we adopt identities throughout our lives” that More…

Categories: Communication, Mediation, Negotiation, Settlement

Add Your PerspectiveJanuary 27, 2010

New Information: One Way to Help Your Client Save Face

The mediation had dragged for an entire day, and we hadn’t made much progress. The other side said they couldn’t give any more, and we wouldn’t, either. The mediator’s proposal that followed was the best deal we’d ever get and, frankly, it was the right number. But my client’s COO reacted instantly, calling in a “no” on his way home. Our answer was due to the mediator in in 24 hours.

As I prepared to discuss the mediator’s proposal with our executive team and the COO the next day I realized my client might have painted himself into a corner — after a good night’s sleep I was confident he would want to change his mind, but sometimes it’s not that easy.

Only Two Ways to Get the Case Settled

I debated how to settle the case that day, and there were only two ways to get it done: with my COO or without him. I could gather the facts and work to More…

Categories: Communication, Mediation, Negotiation, Settlement, Tactics