By Robert Harris*
Shades of Green and Gray
Those providing golfing arenas live in a world of green. Trees, fairways, rough and putting services all share a dominant color. Even the currency — the money that drives the industry for golf course developers, designers and superintendents — is green.
The legal world in which I live, however, is gray. Disputes that inevitably arise rarely are as black and white as they may seem to a passionate participant. Recognizing that there can be legitimate arguments on both sides of a dispute often is key to securing a prompt, efficient and economical result.
A few years ago, I was retained to represent a private club that was unhappy with a partial course redesign. The club felt that the new bunkers were out of step with the club’s character, and that the designer had showcased his portfolio at the expense of playability and ease of maintenance. The designer, on the other hand, claimed he had provided precisely the design requested by the club’s representative overseeing the project and that the maintenance concerns were overblown.
The agreement between the club and the designer required that the dispute be submitted to an arbitrator who would listen to the evidence and issue an award. The parties, however, decided they would attempt to negotiate a resolution with the help of the mediator.
On the day of the mediation, the parties and the lawyers presented their respective arguments to the mediator, who then met separately with the parties. Because both sides were largely entrenched in their positions, they were unsuccessful in reaching an agreement.
Thus, the parties geared up for arbitration. They incurred substantial legal fees in the preparation and presentation of the case, which took place over several hearing days, and required the submission of legal briefs and arbitrator payments.
Based upon the evidence and arguments presented, the arbitrator determined that the issues were not black and white. There were degrees of merit to both sides’ positions. The resulting award reflected the shade of gray. And, as by now you have figured out, once the costs of the arbitration were factored into the equation, both sides did worse than would have been the case had they reached a compromise during the mediation.
Over the years, I have seen this story repeated many times. The script may change, but the ending is the same. Those who approach a dispute understanding that there are multiple sides to a story — or at least recognizing that the other party believes there is another side — more often than not will emerge better off than those who are determined to fight every step of the way.
Principle is important — and sometimes an adversary is unwilling to compromise in any event — but principle comes with a price. An astute business, conscious of the bottom line and the drain on time and other non-monetary resources, will carefully assess the strengths and weaknesses of its position, and with the help of its attorney, determine the course of action that is likeliest to lead to the best result.
[This article, which first appeared in Golf Course Industry, may constitute Attorney Advertising in some jurisdictions. It is for informational purposes only and does not constitute legal advice.]
Originally posted by RobertHarris
on 27 Jul 2011.
All contributors: RobertHarris
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