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2008 J. Disp. Resol. 195 (2008)
Why Should Businesses Hire Settlement Counsel

handle is hein.journals/jdisres2008 and id is 199 raw text is: Why Should Businesses Hire Settlement Counsel? Kathy A. Bryan* I. INTRODUCTION As a former in-house litigation manager, I hired separate settlement counsel in only a few cases and with varying results. With responsibilities for hiring and managing a large portfolio of outside firms, I was loath to increase case-staffing ranks for many reasons-and cost was only one factor. Internal resources must oversee litigation, and having another set of outside lawyer relationships on the same case generally seemed duplicative. Worse, it demanded more of my scarce time to manage both the relationship and the primary litigation firm. In addition, I viewed in-house counsel's role as akin to settlement counsel- coordinating with the litigation team but reaching agreements separately in many cases. In-house attorneys generally tend to share this bias against settlement counsel. Today, with a greater understanding of the sea change that Collaborative Law has had in family law, I want to reconsider that conclusion and explore whether using separate settlement counsel, and borrowing other techniques from the Col- laborative Law movement, enhances and increases the potential to resolve busi- ness disputes. II. COLLABORATIVE LAW AND COLLABORATIVE LAW TECHNIQUES With humble beginnings in Minnesota family courts in the early 1990s, Col- laborative Law (CL) has grown swiftly to include groups in thirty-three states in the United States and in most Canadian provinces, as well as professional associa- tions, law school courses, and even ethical codes.' An essential CL element has come to be the disqualification provision, or Participation Agreement, where the lawyers for both sides agree in writing to work toward a negotiated resolution and, if the case proceeds to court, clients must engage other counsel. Another CL hallmark is the four-way meeting, in which the parties and counsel participate. Parties also agree to good-faith negotia- *. Kathy A. Bryan is the President and CEO for the International Institute for Conflict Prevention and Resolution (CPR Institute), an international nonprofit coalition of corporate counsel, top law firms, judiciary, and academics, dedicated to providing resources and information in commercial conflict prevention and dispute management. Prior to taking the helm at CPR, Ms. Bryan led worldwide litiga- tion for Motorola Inc. and was in private practice in Boston and Phoenix, where she concentrated in commercial litigation. Special thanks to John T. Souvis, law student at Benjamin N. Cardozo School of Law for his assistance. 1. See, e.g., Colorado Bar Ass'n Ethics Comm., Formal Op. 115 (2007), available at http://www.cobar.org/index/cfm/ID/386/sublD/10159/CETH/Ethics-Opinion- 115:-Ethical- Considerations-in-the-Collaborative-and-Cooperative-Law-Contexts.-02/24//; Int'l Acad. Coll. Prof., Standards, Ethics and Principles (May 2005), available at http://www.collaborativepractice.com/_t.asp?M=8&MS=5&T=New-Ethics.

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