Bar News - May 4, 2007
Alternative Dispute Resolution
By: Scott H. Flegal
Savvy Business Lawyers Make Excellent ADR Providers
What separates the best business lawyers from the rest of us?
The best business lawyers have the ability to see and understand all sides of the transaction or business problem at hand. They are excellent strategic thinkers who can quickly help the client generate creative alternatives that might help to close the deal or solve the problem. In that respect they provide value which transcends that provided by the average business lawyer.
The best business lawyers are also amazing deal-makers. Unlike the proverbial king’s horses and king’s men, great business lawyers can and often do put Humpty Dumpty back together again. They are experts at turning stalled transactions into collaborative problem-solving exercises where the parties can re-group and rally to close the deal.
The best business lawyers always negotiate well. They never lose sight of the big picture. They keep their clients focused on what matters most during negotiations. They understand that a final offer is seldom really a final offer. They also know that business conflicts can be as personal and emotional as many non-business conflicts, and they do not shy away from offering help to the client in those areas as well.
Finally, the best business lawyers have a sense of fundamental fairness. They understand that to truly succeed, a deal or solution cannot be one-sided. The best deals meet important interests of each party involved in the transaction or problem. The best lawyers know the importance of striking deals that will stand the test of time. They work to facilitate agreements where both sides make meaningful commitments and sacrifices to further their objective.
So here is my question: if the best business lawyers know the law; are able to see all sides of the challenge at hand; are experts at mending fences and putting deals back together; understand negotiation; accept emotion as part of the equation; and have a sense of fundamental fairness, why aren’t more of them getting trained and offering alternative dispute resolution (ADR) services? These qualities are, after all, the same ones that characterize the best ADR providers.
The current pool of ADR service providers for business cases in New Hampshire is dominated by trial lawyers and retired judges. They rely on their expertise as litigators who understand case values to assist parties in resolving conflict. But it is somewhat surprising that so few business lawyers have chosen to leverage their status as expert deal-makers to pursue ADR training and become ADR service providers.
Please do not misunderstand me. My purpose is not to malign litigators and retired jurists who provide ADR services. They have much to offer in the ADR world. But the fact is that excellent business lawyers who obtain appropriate ADR training bring a skill set to the marketplace that is fundamentally different from the one possessed by trial lawyers and retired judges. Surely there are commercial cases where the negotiation and deal-making perspective of the business lawyer could improve both the prospect of settlement and its ultimate quality.
Lawyers in general tend to downplay the need for ADR training. For business lawyers, however, the reality is that developing good ADR skills will not only make them better ADR providers, it will make them better business lawyers, too. ADR training teaches negotiation, encourages facilitation and collaboration, and offers much-needed advice on dealing effectively with conflict in the room. Perhaps most importantly, it encourages not just the resolution of disputes, but the salvaging of relationships. These skills will serve the business lawyer well in transactions and at the closing table even if he or she never practices in the dispute resolution field.
If you are an experienced business lawyer who enjoys putting deals together, I urge you to consider obtaining training in dispute resolution, and throwing your hat into the ring as an ADR service provider. You may well find it professionally rewarding. At the same time, you will contribute to a field that will benefit from your participation.
If you are a trial lawyer with a business case that might benefit from ADR, I urge you to broaden your search for an appropriate ADR provider to include business lawyers with solid ADR training and credentials. Their experience as negotiators and in the art of putting deals together could help your clients reach a better resolution.
Attorney Scott H. Flegal is a Nashua practitioner and a provider of ADR services.