What do you do to resolve a dispute? Pruitt & Rubin suggest focusing on ‘an objective that is common to both parties and beyond the capability of either party alone’. The idea here is to open the discussion with a focus on the future.
Presently I have a matter where one party has the money or can bring in the money and the other partner is an engineer and has the knowledge behind product development. On their own, they will have to go through the process of identifying another partner – ‘Who else can I approach for money?’ or ‘Can I just buy someone to finish off the project?’.
The engineer knows how to build the product. To convince someone else to invest will require some work, not only understanding the product and the economics but also trust that the project will deliver a return worthy of the risk. One of the existing partners is a user of the software and understands the market so the transaction costs are low. The distance to market is short.
Finding a new engineer or developer has similar challenges. How do you know you are hiring the right person? There are transaction costs, not to mention the risks and trust with changing developers.
This is where the cost-benefit analysis of the dispute becomes handy. In either case, there is no guarantee the relationship between the new parties will be a positive one. After all, disputes may arise in these new relationships.
Pruitt and Rubin also suggest the parties set their best outcome, and their aspirations – how do we want to do business going forward? What are the underlying interests of the parties? The parties then trade concessions, usually the no or low cost, low priority issues. You need to get it to a point where the parties are problem-solving together. Often a reason why mandated mediation doesn’t work. If the parties cannot satisfy their needs, then another round of concessions. This is where it is important to ideate, move, trade and shuffle. Future focus. How do we create more to get to a point where the outcomes and solutions substantially satisfy the basic interests of the parties?
This matter has a while to go before we get to future focus. However, I do have the parties’ future aspirations reduced to writing. When I see these aspirations there is a lot of crossover. I would be surprised if we don’t reach at least one round of agreements. The idea here is to keep the parties engaged and motivated.
