Dispute Resolution

Conflicts can arise within a company, such as an alleged wrongful termination of an employee, or tensions among shareholders, board, and management, or they may be external, such as a breakdown in relationships with a company’s debtors, creditors, customers, or vendors.

In a commercial context, disputes can arise for various reasons, and not all of them are a result of a party acting in bad faith.  Contractual promises can become difficult to enforce in the face of unforeseeable events, such as a sudden drop in market demand or general disruptions like the COVID pandemic.  In many cases, they come from different business cultures between the parties, where the contract’s set guidelines and rules of engagement become open to interpretation.

Commercial dispute resolution doesn’t have to be daunting. You can resolve a dispute by negotiating directly with the other party, and finding practical business solutions. Once you have achieved consensus ad idem, the parties’ new understanding can be memorialized in an agreement to avoid repeat incidents.

However, it is advisable to consult a lawyer about your legal standing before jumping into the fray. An experienced, informed counsel can advise you on available options within the four corners of your existing agreement, as well as more involved options like mediation, arbitration or a trial.

Successful dispute resolution often hinges on the ability of the lawyer to weigh all factors in any commercial dispute and devise a winnable strategy. A general counsel with a big-picture perspective, combined with the expertise of litigation and/or mediator subject-matter experts, can help you to balance your business’s considerations of time, cost, and commercial urgency.

This is Gusto Law’s approach.

If you are facing a commercial dispute and are unsure about your next steps, Gusto Law can assist you in understanding your various legal positions and options. We will evaluate your claim and determine if the circumstances, the quantum at stake, and chances of success justify the costs of pursuing litigation. Gusto Law will ensure you have all the assistance and information to decide on a strategy for optimal results.

Here are some disputes that Gusto Law has resolved:

• In a pre-arbitration settlement, increased the negotiation position of our counterparty, a top-three oil, and gas company, from $800K to $2.8MM, with only a corresponding $400K reduction from our initial claim.
• Successfully obtained a summary judgment order against a defendant claiming pipeline ownership and construction ROFR rights, paving the way for the construction of a safer replacement line.
• Negotiated the settlement of multiple employment wrongful dismissal claims, both having represented employers and employees.
• In the face of a potential $20 million+ lawsuit, I represented my client to avoid litigation entirely with a publicly-traded energy services company by restructuring their contractual arrangements to reflect market realities.

Are Mediation And Arbitration The Same Thing?

In a mediation, the mediator is typically an impartial industry professional or lawyer who serves as an informal facilitator in discussions. The mediator cannot force the parties to come to a resolution. The parties are responsible for their own lawyer fees and typically agree to share the costs of the mediator.

Arbitration is much more formal than mediation and is similar to a court proceeding, except that arbitration procedures are more flexible, and timelines more expedited, compared to the courts. In theory, this should translate to lower costs compared to a trial, but that is not always the case. All parties must typically agree that the decision will be final and binding and not open to appeal for arbitration to move forward.

How are Most Disputes Resolved?

Most civil disputes are settled before they get to court because a trial is a risky proposition for both the plaintiff and defendant. For starters, a civil trial typically involves disclosing private, sensitive information such as trade secrets that could become a part of the public record.

As well, a public trial could generate negative publicity for the company. Depending on the merits of the claims, a judge may order the losing party to be responsible for the prevailing party’s costs and legal fees. A winning party also risks further adjudication on appeal, which means more money sunk into resolving the claim.

However, that is not to say that a civil trial is always something to avoid. Some cases are simply not appropriate for alternative dispute resolution methods.

How Do You Choose the Right Dispute Resolution Method?

The first thing a party should do when dealing with a dispute is to put the case before a lawyer with broad experience in commercial law and in the resolution of disputes. The lawyer can take a comprehensive view of the case and consider all options (including practical solutions and procedural strategies) before recommending the best dispute resolution method to a client.

Gusto Law takes a flexible and transparent approach to fees for commercial dispute resolution, offering the following arrangements:

• Ad hoc hourly rates: hire as required. This may be necessary where you need to accommodate tax considerations, particularly in the context of cross-border organizational structures.
• Success/contingency-based billing: This is appropriate in limited circumstances in a commercial dispute and is typically reserved for other areas of law (personal injury and wrongful dismissal, for example), but we are welcome to evaluate whether this is a viable option.

At Gusto Law, we can combine the resources of a commercial counsel who has resolved a multitude of disputes without any escalation to court, as well as a network of experienced litigation and mediation specialists, to help achieve a timely, cost-effective resolution.

If you would like to discuss your dispute issues, schedule a free 20-minute consultation.

This webpage’s content has been prepared to provide a general overview of certain legal services offered by Gusto Law, and is not intended to be an exhaustive legal analysis. It is not a substitute for legal advice and should not be relied upon for any particular transaction, proceeding or circumstance. The information is provided as of the date set out below, and thus the reader is cautioned that changes or developments in the law, or its interpretation, may have occurred since that time. If you are forming a new business, please seek further individual consultation with Gusto Law.