Art Buchwald, Paramount Pictures, and the Cost of Litigation Instead of Negotiation

Learn how expensive litigation tin can be compared to dispute resolution processes from ADR similar mediation

By — on / Business Negotiations

litigation

Back in 1998 when Art Buchwald sued Paramount Pictures over the Eddie Spud pic Coming to America, the widely reported outcome was seen as a win for the late, dearest humorist. But Buchwald actually lost — then did Paramount. There was a huge price accrued by entering into litigation instead of negotiating.

Buchwald and his partner Alain Bernheim sued for near $6.2 million, claiming Paramount had based the motion picture Coming to America on their screen handling called King for a Day. Buchwald was awarded $150,000 but, after iii years of litigation, he was already out of pocket $200,000 … and Paramount was in the hole for nigh $3 meg. There were no winners here, unless you count the lawyers.

In a litigation dispute similar this, some say lawyers can practise more damage than good. But when big dollars — not to mention big reputations — are at stake, how can you do without lawyers?

At the Harvard Program on Negotiation, we'd contend that'due south the wrong question. A better 1 might be: How can yous get the near out of your lawyer(due south)?

In Beyond Winning: Negotiating to Create Value in Deals and Disputes (Belknap Printing of Harvard University, 2000), Professor Robert Mnookin and his co-authors Scott Peppett and Andrew Tulumello contend that lawyers and clients often miss chances to plough disputes into deals:

1. Some cases (like Buchwald's) are tried when they ought to be settled. Posturing frequently takes place in early stages — 'Your case has no merit!' — that makes it hard to try something else without fearing y'all'll lose face up.

2. When cases do settle, information technology may exist after costs have passed the betoken of no return. A tactic used by many lawyers is to wage a war of attrition, running costs upwardly during pre-trial discovery. That'south a game ii sides can play. While that may exist smart in a win-lose situation, it doesn't make sense where both sides stand a gamble to win.

3. Focusing on dollars may blind opponents to deals they might otherwise make — deals that could abound the pie for all sides. In a sexual harassment case, for example, the plaintiff may seek thousands in damages — merely what she really wants is an apology and an improved workplace environment.

If you face up a situation similar Buchwald's, consider handling it another style:

  • Look at dispute resolution . Before the lawyers go to courtroom, make them bear witness how a lawsuit will be better for you lot than arbitration.
  • Seek ways to turn a dispute into a deal . Don't focus merely on the dollars — place all your interests, as in the sexual-harassment case above.
  • Use tools to analyze potential outcomes , like dependency diagrams and decision trees. If the tool indicates in that location'due south a xc% chance the judge volition admit a crucial report, y'all might sue; only if the tool says 45%, perchance you'll negotiate instead.
  • Open up to your lawyers . E'er hear the saying, 'To a hammer, every problem looks like a smash'? Lawyers file lawsuits. Just certain disputes — between family members who are business partners, say — may accept fundamental emotional dimensions too. Brand certain your lawyer understands all your interests and concerns.
  • Incentivize your lawyers . Don't be afraid to say, 'Piece of work out a settlement in 120 days and I'll triple your hourly rate … just take more than a year and I'll burn down you.'
  • Use separate lawyers to settle . When the war ends, the soldiers get abode and the diplomats take the field, so … after your lawsuit is worked out, why not ship your attack dog dorsum to his kennel, and rent a lawyer who specializes in settlements?
  • Find depression-cost ways to exchange vital information . Lawyers have admitted that 10% of the discovery process typically yields xc% of the of import information. Rather than spend a fortune on discovery, why non negotiate an data trade?

Sometimes you must sue in litigation — to look tough, to uphold a "principle" — but far more ofttimes, negotiation produces better outcomes.

Negotiation is not a talent you are built-in with.

It's a skill that y'all tin can learn.

Is there a time yous accept avoided litigation past using a mediator? Share you experience in the comments.

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