Don't Stop Managing Your Risk Just Because You Have a Dispute

“I was never ruined but twice - once when I lost a lawsuit, once when I won one.”

                                                      -Voltaire

I write these Observations to help you manage your risks as intelligently as possible.  Nevertheless sometimes problems and disputes over those problems arise.

So when you have a dispute over a problem don't you want to control its outcome (i.e. manage that risk as well)?* 

When your dispute ends up in litigation or arbitration and you finally turn it over to the arbitration panel or jury to decide you, at that point, give up total control over your fate.  Think about potential panel or jury members and how well you will know them. Why would you give up that degree of control over the resolution of your dispute to total strangers? Here is a link to a recent federal appellate court decision which I think dramatically tells us what unforeseen events may occur once we do turn over that control (in this case at least three times).  I do not cite this case for any proposition other than the line from the movie Forrest Gump "You never know what you're gonna get." Now for the link: 

http://pacer.ca4.uscourts.gov/opinion.pdf/091038.P.pdf *

Think about about mediation, you do, after all, retain control during the entire process. You are not alone in controlling the outcome but then you never are in arbitration or litigation. When you are mediating a dispute you are actively managing your risk.  Not so in the other forums - as I said when your evidence is in and the arguments are over and you turn your case over to a panel, judge or jury all risk management ceases. You better hope that a good jury, judge or panel showed up for your case and the bad ones somehow went to a case on the other coast.

* my thanks to my acquaintance Marc Dobin, a securities lawyer in Jupiter Florida, for a recent blog post which alerted me to this case. Marc's blog can be found at http://lawyersfromjupiter.blogspot.com/