The three-dimensional aspects of commercial litigation
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The three-dimensional aspects of commercial litigation
As someone from a Naval family, with an interest in sailing, one of the first techniques you learn when navigating is how to take bearings from three separate landmarks to identify your position on a chart. By doing so accurately, not only do you determine your position but the route to be taken to the intended destination. (Pretty crucial if you’re in the middle of the Atlantic ocean!)
The three-point principle (legal, commercial and personal) is equally applicable to a lawyer’s role in advising business owners and, specifically, guiding them through the often complex world of dispute resolution.
It goes without saying that lawyers are in a privileged position – well beyond the trusted advisor label – although, at the risk of sounding tendentious, some may not appreciate the fact. To be clear, it is the duty of a lawyer to get as close to his client as possible, without losing objectivity, and to coalesce around the three tenets of the business owner’s life; namely, his legal, commercial and personal interests. This is crucial if you want to look at genuinely out-of-the-box solutions.
Of course, the tenets all have importance in the mind of the business owner and, being human, one can naturally expect the personal interests to hold first or second position. In terms of outcomes to a dispute, it is important to bear in mind that the court will look at the legal position between the parties and determine the case applying legal principles to the facts. That will often only cover one dimension of the client’s present and future interests and is unlikely to have regard to the on-going commercial and personal interests between the parties. This is not a failing of the court process but a consequence of resolution of disputes by the court. However, it can leave the party to litigation, even the winner, feeling despondent that the court is unable to resolve a wider panoply of issues.
But there is another option, that being mediation. However, before mediation is investigated, it is important that the level of rapport and trust with your lawyer is such that he or she understands fully the business owner’s commercial and personal interests when determining which of the many tactical options available for resolving a dispute should be adopted. To be clear, mediation is just one of a number of options but it is one with a successful track record in resolving cases and keeping alive the commercial interests of the parties. Further, whilst the courts have their place in the justice system, mediation takes account of the past, present and future position as well the three-point principle (legal, commercial and personal). As an added bonus, importantly, if the case settles at mediation, there is a significant saving in cost and management time.
In summary, if you’re involved in a dispute or expect to be, consider the three-point principle and ask yourself if the options on offer properly reflect your desired outcome.
If you would like to know more about mediation in commercial disputes and the tactics to resolve commercial litigation please contact me.