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62 Bus. Law. 37 (2006-2007)
Calling All Deal Lawyers - Try Your Hand at Resolving Disputes

handle is hein.journals/busl62 and id is 53 raw text is: Calling All Deal Lawyers- Try Your Hand at Resolving Disputes By James C. Freund* ** This article is intended as a wake-up call to deal lawyers, inside corporate counsel, and others who negotiate agreements in the commercial world-urging them to become more involved in resolving business disputes by negotiation and, where appropriate, through me- diation. The author makes the case that deal lawyers-who too often defer to litigators to handle these matters-ought to apply their problem-solving skills, ability to strike advan- tageous compromises of tough transactional issues, and negotiating prowess to the resolution of disputes. The article includes a discussion of why settlement usually makes more sense than going to trial, why resolving disputes is so difficult, the reasons that many deal lawyers don't get involved, why they should, early steps to prevent disputes from ending up in litigation, and how mediation can be helpful to reach negotiated solutions. Here's something I don't understand. At the risk of oversimplification, the world of business lawyers is divided be- tween those who negotiate deals' and those who litigate disputes. But there's a third category of lawyering that falls in between these two areas-lawyers who resolve commercial disputes through negotiation. It's a vital category, and what I don't understand is why the lawyers who do the deals have in large part ceded this territory to the litigators who handle the lawsuits. This needn't be the case, and the point of this article is that it shouldn't be. To me, as an ex-deal lawyer who has lately seen the light, it makes no sense. We deal lawyers share certain professional traits: we relish our client relationships, * James C. Freund is a former partner of, and currently of counsel to, the law firm of Skadden, Arps, Slate, Meagher & Flom LLP He is an Advisor to the Business Law Section of the American Bar Association. He is the author of ANATOMY OF A MERGER-STRATEGIES AND TECHNIQUES FOR NEGOTI- ATING CORPORATE ACQUISITIONS (Law Journal Seminars Press 1975), LAWYERING-A REALISTIC AP- PROACH TO LEGAL PRACTICE (Law Journal Seminars Press 1979), and SMART NEGOTIATING-HOW TO MAKE GOOD DEALS IN THE REAL WORLD (Simon & Schuster 1992). He has lectured and written extensively on dispute resolution and mediation. A.B. Princeton University, J.D. Harvard Law School. ** The subject matter of this article is based in part on a seminar in which the author participated at the Spring 2006 meeting of the Business Law Section of the American Bar Association. 1. My background is in mergers and acquisitions, and most of the disputes I mediate stem from acquisition transactions. But in using the term deal lawyer in this article, or posing examples taken from the M&A field, I don't intend to unduly narrow the focus of my message. I mean deal lawyer in a broad sense to refer to someone whose daily fare is negotiating consensual agreements of one kind or another for clients in the commercial/business/financial world, including inside corporate counsel and regulatory lawyers who sit across the table from government officials.

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