IP ADR Blog Merges with Commercial ADR Blog
I’m merging the IP ADR Blog with a new blog called Commercial ADR – Business Solutions to Justice Problems. I’ll continue to post articles to the Settle It Now Negotiation Blog on matters of general interest to negotiators, including litigators who negotiate the settlement of lawsuits and some of my colleagues might post occasional IP ADR Blog articles here. At some point, however, I'm going to have to shut the IP ADR Blog down. 
After three years of negotiation and general ADR blogging, I feel the need to narrow my Negotiation Blog posts and expand my IP ADR Blog posts to the type of work that consumed the vast bulk of my 25-year litigation and trial career – general commercial litigation.
Since 1982, I’ve been litigating and trying commercial cases of all stripes, including the small business dispute. I’ve represented garment manufacturers, car dealers, medical groups, insurance carriers, cable companies, import/export businesses, banks, title companies, stock brokerages, law firms, hospitals, agri-business, contractors, and the people who own, manage or represent these commercial concerns in-house. I’ve also represented the interests of small business people in the predictable conflicts in which they become involved, including partnership disputes and other actions in which fiduciary duties or contractual obligations have allegedly been breached.
In the course of handling business-to-business disputes, I’ve prosecuted and defended legal actions for copyright, tradename, trademark, and patent infringement; securities fraud; and, insurance coverage (particularly concerning catastrophic environmental liabilities); antitrust; and, unfair competition disputes. I have also represented both the Plaintiffs and the Defendants in nationwide class actions; and, from time to time, represented attorneys and accountants in malpractice cases. I even have a small amount of experience representing employees and employers in wrongful termination and discrimination cases, but certainly not enough to call myself an expert in that field.
In the course of my ADR career, I have continued to focus my practice on commercial disputes, although I have also mediated employment, legal and medical malpractice, and personal injury cases.
Colin Powell famously said that the most important knowledge to possess in international diplomacy is the “other guy’s decision cycle.” What interests must the client serve and to whom does he or she answer? What potential damage might there be to the career of in-house counsel or a high-level manager if the litigation goes south or the mediated settlement agreement angers the Board, the shareholders or even the public? Are there tensions between counsel and client that should be resolved if the settlement reached will serve everyone’s interests? Are there upcoming mergers or other significant corporate events that make “circumstances” more important than the merits of a particular piece of litigation?
This describes just the tip of the iceberg of the commercial litigation and settlement “decision cycle,” I know intimately. I know what keeps clients awake at night because their concerns have been my business for more than a quarter of a century. I also know at greater depth than I know anything else the competing demands and hard hours my new “clients” – commercial litigators – labor under on a daily basis. And having cut the law firm umbilical cord five years ago, I finally know first hand the challenges of running one’s own business.
This is what I bring to my mediation practice, along with the negotiation and mediation skills I have been studying, writing about, and teaching with great diligence for the past five years. I continue to teach trial and deposition advocacy for the National Institute of Trial Advocacy just to keep my hand in the adversarial system. I also continue to follow developments in the law of all of the specialties that consumed my practice as an attorney.
And then there’s that LL.M in Conflict Resolution that perplexes most people in the legal community. One of my dearest friends – a man who served as my discovery referee for seven years – asked me “how many ways are there to stir the mediation pot?” Thousands, it turns out, particularly given the enormous progress that has been in the science of the mind, the study of decision-making and the examination of cognitive biases since I was at University.
Sitting on this side of the table for the past few years has been as confounding as it is exhilarating. I remain steadfastly convinced that the principle problem at hand is a commercial one to which there is almost always a better business, than a legal, solution. That does not mean that I ignore or marginalize the “merits” or “positions” of the parties. The ability to analyze the facts and the law of matters that have been in litigation for years — sometimes decades — in several hours or a couple of days is the mandatory minimal qualification for anyone who wishes to help litigators resolve commercial disputes.
Though the law “monetizes” injustice, no one – not even the most cynical Fortune 50 client – wants to settle a case that leaves the bitter taste of injustice in his mouth. To deliver the benefits of the legal system to our clients we must never forget that they seek out the services of the “justice system” because they believe they have been treated unfairly. So it is that a critical element of every “commercial” solution to every legal/business conflict, is the resolution – even at the level of “rough” justice – of what brought clients to lawyers in the first instances – their perception that they have been cheated, blackmailed, insulted, taken advantage of, lied to, coerced or disrespected.
After twenty-five years of legal practice, I can say with conviction that the highest and best use of every mediator is to help the lawyers help their clients obtain – at a minimum – a “deal” that not only releases them from the trap of litigation, but one that releases them from the grip of injustice.
All of these goals; each of these interests; and, every one of these skills, are possessed by dozens of mediators with whom I have worked or who I have observed in the course of their work. I’m certainly not the best nor the only passionately competent commercial mediator in the business. I’m just one of them.
This new Commercial ADR Blog will cover not only negotiation and mediation strategy and tactics — including tips for resolving thorny legal and commercial problems, but also the social psychology of conflict as it relates to the business of commerce. I will also cover developments in commercial law and civil procedure that are particularly relevant to the settlement of litigation.
