Ontario-based mediator Colm Brannigan * has passed along a valuable article on the mediation of Information Technology disputes from a June ’07 Ontario Bar Journal publication. The article, Resolving I.T. Disputes through ADR — Part I Mediation was written by Colm with his co-author Michael Erdle. **
Link above with a tempting excerpt below:
[A] common obstacle to settlement in technology cases is differing interpretations of technical terms in a contract or specification. This may prevent the parties from addressing more substantial issues. One possible solution is to mediate a common standard against which the more substantial issue will be measured. A mediator can work with the parties to bring about agreement on a common technical expert whose opinion will be acceptable to everyone.
Another common cause of IT disputes is a misunderstanding between the parties of their respective obligations on a large project. This is especially true where there are multiple parties. The work inevitably takes longer and costs more and each of the parties, often all in good faith, blames the others for the problem. This is a situation that is very difficult to resolve through a series of one-on-one negotiations and can almost always benefit from mediation.
The mediator can facilitate a session that brings all of the parties together, to explain their own understanding of their roles and responsibilities. This assists all parties to understand the gaps that have arisen and helps them to find ways to bridge those gaps in ways that can benefit everyone. These kinds of results are simply impossible to achieve through arbitration or litigation.
In many situations, the parties will have devoted resources to developing a technology or an application upon which they become mutually dependent. Often, other parties, who are not directly involved in the conflict, also rely on these technologies. In a traditional litigation approach, an injunction is often viewed as the remedy of choice.
But the extremely disruptive results of this action on business partners and third parties must be taken into consideration. While the legal rights may support an injunction, the consequences will likely disrupt the business relationships to such a degree that no subsequent effort to restore them would be successful.
Most business people agree that a major part of a company’s cost in delivering services is the expense incurred to develop and maintain customer relationships. The investment in this area is put at risk by traditional litigation methods. By using mediation the parties can meet and with the assistance of the mediator develop creative ways to preserve their investment and/or rights while they work to resolve the substantive issues in their dispute. This can avoid disruptions to a third party that could have the unintended result of additional legal proceedings by the third parties against the disputants.
No dispute is completely binary (win-lose) and business people usually do not think in such simplistic terms. Why should their advisors? Mediation tries to achieve a positive sum result – “I win, you win”. While not always possible, mediated results tend to be creative and sustainable, simply because they are mutually-beneficial. In an industry where entrepreneurship, speedy decision-making and action are highly valued, the management “distraction factor” is an even greater litigation cost than in traditional industries. This cost is significantly reduced by the use of mediation as an affirmative business strategy.
** Michael Erdle is Managing Partner of Deeth Williams Wall LLP. He is a mediator and arbitrator and has advised technology clients in alternative dispute resolution. He can be reached at [email protected] or (416) 941-9201.
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