arbitration’s lesson: “can we?” versus “should we?”

By October 13, 2015Dispute Resolution

This past month, New Orleans Magazine recognized me in their Top Lawyers 2015 for my work in International Arbitration. There were only three of us, and although it’s nice to be mentioned with lawyers who have been at it for a good deal longer, until I sat down to think about this blog entry I felt awkward about being chosen in the category.

I may help a client with a dispute involving a true international contract 2 or 3 times a year, but arbitration happens even less frequently. In the United States, arbitration is a hit or miss proposition. At its best, domestic arbitration is a watered-down version of litigation. In less shining moments, American arbitration is little more than one party’s means of delaying enforcement of an agreement. These approaches aren’t what arbitration, or any dispute resolution, should be.

I was taught by the best private law scholars in the world (FerreriHondiusLevasseurLitvinoffMagnusZuppi). Lawyers who weren’t so fortunate would be shocked to learn these academic giants take a decidedly non-academic approach when solving the world’s commercial problems. That approach is why I believe in arbitration and it’s central in the work I do for my clients. Whether a dispute amounts to a failure to communicate between business partners, or whether it involves  a complex trademark issue litigated in federal court:

being “legally correct” is helpful;
but being “right” is absolutely essential.

Without straying from “what the law says,” the folks who write the books, the former judges, the people presently codifying law to form a European Civil Code are basically all in agreement: the goal of any conflict resolution is reasonableness and the search for the answer that is the most “commercially reasonable” never ends. For them, it’s often a simple case of:

can the law support this party’s behavior? Is it “legally correct”?
should the law support this party’s behavior? Is it “right”?

Brought back into practical terms – my goal is to treat each client’s case from the outset as if it’s being submitted to those who trained me. Even the best lawyers get bogged down in “being right” or showing how they can contort the law to suit a client’s needs. Those are great skills and the law couldn’t develop if we as lawyers never put pressure on the opposing party or stood our ground when the situation called for it. But when your dispute is boiled down to a few fundamental issues, the most successful business owners I know want their lawyers to tell them when their “technically legally correct” position just isn’t “commercially reasonable” under the circumstances.

The search for a “commercially reasonable” solution usually tempers expectations and it creates better business practices going forward, particularly in small communities where disputes arise between those who would prefer to keep doing business together. Commercial reasonableness almost always resonates with judges – ruling for an unreasonable litigant can’t feel good.

Arbitrated or not, business disputes benefit from international arbitration’s aim – the search for what is “commercially reasonable”. Whether you’re dissatisfied with the million dollar machine a Chinese company built for you or you’re worried about your business partner who lives down in Plaquemines Parish, let’s talk about how to shift your focus from “can we?” to “should we?”.

Leave a Reply