Copple & Associates,P.C.

Providing creative and effective strategies

A Model for Dispute Management

A MODEL FOR DISPUTE MANAGEMENT

It is because of my years of watching unnecessary litigation and the needless expenditure of resources that I have developed my three-pronged approach to dispute management.

Dispute Prevention

With a little forethought and planning, businesses can eliminate many disputes before they even happen. Through the implementation of risk management procedures, potential issues relating to core business functions, such as supply management, manufacturing, distribution, customer and investor relations, and business expansion can be managed and resolved before they give rise to costly disputes. Compliance programs proactively addressing areas such as corporate responsibility and environmental regulation can prevent disputes, as well as unnecessary business disruption and negative public relations. By adopting alternative dispute resolution (ADR) policies and inserting ADR clauses in business agreements, even when disputes arise, they can be addressed efficiently and fairly before they develop the momentum that may lead to litigation.

Dispute Management & Mitigation

Once a dispute does arise, and some inevitably will, there are many tools available to the sophisticated business person to successfully resolve the dispute before it festers into litigation. For example, whether the complaint is from a customer, vendor, distributor, patent holder, regulatory agency or public interest group, early and meaningful negotiations between the parties has a high probability of bringing the disagreement to a close at a much lower total cost than if the dispute is ignored until formal litigation is filed.

Even when the litigation trigger has been pulled, strategic litigation management can be invaluable in determining the best allocation of litigation resources, identifying the most likely path to success, and optimizing ADR and negotiations. For example, the prudent business person approaching a major deal will, undoubtedly, develop a strategic plan, create a budget, carefully assign people and resources and closely monitor the deal through to completion. Why should major, costly litigation with a high exposure level be treated any differently? The answer is that it should not.

There are a variety of useful budgeting and monitoring tools available for day-to-day litigation management. In addition, more sophisticated techniques, such as decision tree and options analysis, provide very effective means to determine probable litigation outcomes and also serve as excellent briefing materials for senior management.

Dispute Resolution

Business related litigation rarely, if ever, deals with fundamental issues of life, liberty, and the pursuit of happiness. Instead, like any solid business enterprise, business litigation should be addressed from the perspective of maximizing profit, minimizing loss, competing effectively with competitors and maintaining and developing valuable relationships. Therefore, the “win at all costs” approach is simply a bad and often irresponsible business decision. This is why alternative dispute resolution is such an important business tool. Many decision makers, in both business and politics, pride themselves on being able to put together and negotiate successful deals. It should be no different for legal disputes. Whether through private negotiations, mediation or arbitration, sophisticated resolution strategies relegate disputes and litigation to where they should be: a cost of doing business that can be controlled and which should not disrupt and distract the business or enterprise from its primary goals.


Selected Alternative Dispute Resolution Publications and Presentations:

Downloads

A Stepped Approach to Successful NRD Alternative Dispute Resolution, Natural Resource Damages in the Gulf, Miami, Florida, January 20, 2011.

Dispute Resolution in the New Age of Law or What Senior Partners Won't Tell You, Arizona State Bar Association, Young Lawyers Division, March 19, 2010.

Discover New E-worlds, Legal Times (April 21, 2008).

eDiscovery: It's All About the Information, Arizona ADR Forum (Fall 2007).

Behind The Magic Curtain, Corporate Counsel (May, 2005).

Bulldozing Barriers To Patent Case ADR Use, National Law Journal (April 11, 2005).

Electronic Discovery in Arbitration, Arizona State Bar Association, February 5, 2008.

ADR and the Technology Dispute, Arizona State University College of Law Center for the Study of Law, Science, & Technology, January 30, 2007.