Today’s guest blogger, David J. Abeshouse, is a Long Island based B-2-B litigator, American Arbitration Association (“AAA”) arbitrator, and mediator. David and I are good friends and members of the Attorney Roundtable, a networking group that features some leading Long Island based practitioners in a number of different practice areas, all of whom practice solo or in small, boutique firms. David is one of the founding members of the group. He’s also an accomplished clarinet player and a former professional musician.
David’s legal and alternative dispute resolution (“ADR”) practice focuses on litigations, arbitrations and mediations involving small and medium-sized businesses and professional practices. Because he serves not only as an advocate, but also as a neutral decision maker and settlement facilitator, he has a broad-based, well-rounded perspective on — and unique insights about — commercial disputes. You can read more about David’s practice and background here.
David and I share many of the same views on key issues pertinent to B-2-B ADR and litigation. We both believe that the parties are architects of their own dispute resolution destiny, and, if they wish to take advantage of the many benefits that B-2-B arbitration and mediation can offer, then it is incumbent upon them to take a proactive role in structuring the process in a manner that advances their business interests. That is true whether the party is a large global insurer or reinsurer, a medium-sized financial service company or retail concern, or a small closely-held company or professional practice doing mostly local business. Most large companies, and many medium-sized ones, know this and their sophisticated, in-house legal departments often devote substantial time and money into educating themselves about ADR and ensuring that their business contracts, including their ADR-related ones, are as carefully designed and well drafted.
Smaller companies do not always have in-house the resources to prepare for and deal with disputes, even though disputes are one of the unfortunate realities of doing business. And while the frequency and number of disputes small companies must handle is generally low, their severity can be quite high — even fatal.
Dispute resolution and prevention is thus at least as important to smaller businesses as it is to large, multi-national companies. Yet many smaller business devote few or no resources to dispute management.
Sometimes this disparity in resource and risk allocation is a simple fact of economic life, including the law of large (and small) numbers. In others it may evidence a conscious or unconscious decision to assume more risk than necessary or appropriate.
Both David and I are experienced litigators who have seen firsthand the negative consequences that large, medium and small businesses can suffer as a result of poorly drafted contracts, including ADR-related contracts. With the benefit of 20-20 hindsight we frequently wonder how it came to be that two business have found themselves in costly litigation or arbitration proceedings concerning a problem which might have been avoided had the parties more carefully drafted the contract or structured the transaction differently.
This theme underscores David’s guest post, “Don’t Be Penny Wise and Pound Foolish with Contract Law,” which he originally published in the Basso on Business Blog. Consider it recommended reading for those who own or work for small businesses.
David has written two other, related articles that we will feature in the not-too-distant future, so stay tuned.