When selecting a lawyer don’t just focus on end results, consider carefuly how to achieve results fast. One of the highest value skills we should seek from dispute resolution lawyers is their predictive capacity in their area of expertise.
For this, up-to-date legal knowledge as well as technical skills is not enough.
This is especially so when the client is an individual or small businesses or when the other side has greater financial and other resources.
The word “practice” underlines practical needs, not just legal knowledge or technical legal competency on their own.
The aim is to get to results fast, whether that be a demand for money, ceasing of unlawful activity or something else.
In dispute resolution by a lawyer a simple starting process to follow can involve the five questions below. Each needs discussion in a meeting or over the phone. Rarely will email be sufficient.
- How did your dispute arise, what’s the full story and who is involved?
- Where is the documentary evidence relevant to the dispute and what does it indicate?
- What’s causing the behaviour by you and the other parties in the dispute?
- Could constructive behaviours be encouraged; if so, what process should be followed?
- Acting on the understanding that’s emerged from the foregoing, what should you and your lawyer do next?
As regards point 5, before any communication with the other side, the options for the next action step should be carefully considered and fully ventilated by you in consultation with your lawyer. The appropriate steps needs to be selected.
Steps 1 to 5 may point to the appropriate next step being, for example:
- a phone call to the other side or a request for a meeting,
- an email or letter by you to the other side,
- a letter on your lawyer’s letterhead (this has many sub-options), or
- locating a common trusted person to operate as an informal mediator.
Getting to an appropriate step 5 action is often more about following a common sense dispute resolution approach than just about finding out what “The Law” says.
The fact is that in many disputes “The Law” is often grey, even pale grey, certainly rarely black and white. This is usually not the fault of the law. Instead it is because most business disputes arise from business or management’s screw ups. More often than not there is no contract, no written agreed plan, no budget, no feasibility study. These are each screw ups, not problems caused by the law being grey.
Parties who often can no longer speak to each other turn to lawyers to state their claim or start litigation. Their lawyers should very rarely immediately convert a refusal to communicate, or a mere difference in understanding into civilised war (aka litigation). Sometimes it is necessary, but rarely.
If you are in a dispute, apply the above five step process. Call a lawyer who is an expert in negotiations. Ask good questions and discuss circumstances in detail before you select the best next step for seeking to settle the dispute early.
Photo: This photo is of Samual Griffith in 1903, first Chief Justice of the High Court of Australia.
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