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The London Chamber of Arbitration and Mediation has recently launched a new ADR scheme called Facilitated Contract Renegotiation (FCR). In FCR, an independent facilitator helps commercial parties to adapt their contract to meet changed circumstances. It is a useful tool that will let many parties deal with issues before these develop into formal disputes. Its true importance, however, may be in encouraging a change in mindset towards dispute resolution.
The organisation of law firms has unwittingly created a problem. There is good sense in the packaging of services to clients as corporate, employment, dispute resolution and the rest, but this division separates: individuals in one practice area lose sight of the others. Transactions are transactions and disputes are disputes, and never the twain shall meet. The deal is finalised, and if problems arise, they are handed over to others to address.
But the deal remains the same. It does not become something else when it is transferred. And the aims of the parties remain the same. They may have lost some of the trust between them, and their relationship may have changed, but they still have much in common. They still want to achieve commercial success.
What FCR brings is an opportunity to reconnect: to reconnect the parties, but also reconnect the legal practice areas. Rather than being separate, dispute resolution becomes part of the transaction. The negotiators have the chance to continue negotiations. FCR extends the opportunity for commercial people to try to find a commercial solution, before handing the problem over to the dispute lawyers; or else it brings the dispute lawyers into the transaction. The facilitator helps the parties chase down every commercial avenue before triggering a formal dispute.
Ironically, division is also created by the contract. An agreement is a point frozen in time. But after the contract is signed, the parties’ relationship
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