Harvey Spector and Mike Ross are the creative, intelligent and purely fictional lawyers from the TV series, Suits who are able to tap into a seemingly inexhaustive playbook of strategies. Almost without fail these strategies allow them to resolve complex problems and disputes ensuring their clients come out on top, before trial and in one hour.
Is Suits entirely fantasy or do creative dispute resolution strategies work in the real world?
Unfortunately Suits is not reality and most lawyers are not that attractive, dynamic or creative. However, not all of Suits is fiction: creative dispute resolution strategies exist in the real world – and they work (even though we don’t have a team of writers to do the creative thinking).
The strategies implemented through the Kain Dispute Methodology are designed to resolve disputes as early as possible and prior to trial. Our objective is to achieve our client’s commercial aims, limit legal costs and minimise disruption to our clients’ businesses. We develop strategies in conjunction with our clients. Some of the most effective strategies have incorporated elements proposed by our clients or lawyers with other specialities.
Whilst written settlement offers and mediations remain an essential part of each dispute lawyer’s strategic options, our clients have had success using them in conjunction with other strategies. When our clients progress to mediation, preparing for the mediation by focussing on the parties’ objectives and desired outcomes rather than solely on the pleadings, evidence and skills of respective barristers, will significantly increase the chances of success.
Some of our more creative strategies to resolve disputes prior to trial have included:
- meetings between the chair of each entity and/or directors one step removed from the dispute (without lawyers where possible);
- having an expert in the relevant field decide the dispute. This is particularly effective in areas which require specialist knowledge which is not often held by lawyers or judges;
- payments in goods or services instead of cash (where a relationship can be maintained);
- agreement to abide by a joint QC/SC opinion on the legal issues. The alternative to this is to use an existing opinion demonstrating the likely success of your case to support a settlement offer;
- sending a cheque for a reasonable settlement sum with a letter to the claimant in response to a letter of demand. The resolution and releases becomes effective when the claimant banks the cheque;
- online dispute resolution – this is a blog topic in itself but involves the use of online services and technology in dispute resolution; and
- by arranging for the IP or other assets which are in dispute to be licensed by one party to the other.
Of course, this list is not exhaustive and many of these can be used as part of an overarching strategy. The best outcomes are achieved through strategies developed from a strong understanding between client and lawyer of the client’s commercial objectives (and the time and cost of delivering those objectives).
In our experience, simply trying an alternative to the more expected forms of dispute resolution can have the benefit of bringing the other party to the table because the unexpected is more likely to arouse interest and engagement and communicate a genuine interest in resolving your issues.