Prepare for coming blizzard of legal paper

hen Shakespeare wrote the words "now is the winter of our discontent" and "first let's kill all the lawyers," it is unlikely Y2K issues were on his mind. However, those phrases aptly describe the mood associated with the first winter of the millennium and the blizzard of lawsuits which are expected to accompany it.

After a lengthy and expensive lawsuit, even a favourable outcome is often a poor remedy. Instead of the prompt application of specialized expertise to resolve a technical problem, inadequate financial compensation is awarded long after the damage has been done. Frequently that award merely entities the victor tojoin a long line of unpaid creditors claiming against an insolvent software supplier. However, there are practical alternatives to commencing a lawsuit to address a Y2K problem.

In this country@ and other countries where mandatory alternative dispute resolution for Y2K has not been prescribed by law, voluntary Y2K dispute resolution accords are an alternative solution. Major corporations and public sector agencies have signed these alternative dispute resolution pledges. Two examples are the Millennium Accord at www,accord2000.com, which is focused on Y2K issues, and the CPR Institute at wwwcpradr.org/-velcome.hun, which offers both a general corporate alternative dispute resolution pledge and an alternative dispute resolution Year 2000 commitment.

In Canada, the designated administrator of the Millennium Accord is the Canadian Foundation for Dispute Resolution at w-,aw.cfdr.org/index.htm.

Each accord establishes a set of principles for avoiding unnecessary Y2K litigation and prescribes a dispute resolution procedure. Signatory organizations sign a pledge to adopt the principles and apply the procedure, before commencing litigation. Check the accord Web sites to see if the organization on the other side of a Y2K problem is listed as a signatory. The managers you deal with may be unaware of executive decisions made by the head office of their own organizations. Then it is a relatively simple matter to compel them to present the dispute to a neutral mediator or arbitrator.

Alternatively, the accord principles and procedure can be adopted voluntarily. This approach is often used when disputes involve multiple parties. The existence of a pre-structured neutral procedure helps to overcome concerns about the risk of procedural disadvantages and avoids the delay of developing a customized ADR procedure.

Years ago, government policy required formal litigation for any disputes which involved issues of law in addition to facts. However, modern public sector policies actively promote the use of alternative dispute resolution subject to Department of justice approval. The dispute resolution services division of the Department of justice has approved alternative dispute resolution as a timely and cost-effective approach for all but exceptional issues or circumstances where recourse to a designated tribunal is required by law.

The justice department can also help in locating qualified neutral mediators and arbitrators. The department's dispute resolution services office maintains an Internet-based directory of "neutral" individual and service provider organizations. The directory is located at http://www.canada. justice. gc. ca/orientations/methodes/drn db-en.html. Prepare for the coming blizzard of legal paper by strapping on your alternative dispute resolution snowshoes and stay on top of the white stuff By using alternative dispute resolution, your department may be able to keep on marching forward while others are being buried alive by Y2K legal problems.

David M, Robinson, LLB. is executive director of The TechKnowledgey Group, advisors on negotiating and documenting complex IT transactions. Tel: 800-973-3833, [-mail: in@otkyoroup.com.

Copyright Plesman Publications Ltd. Jan 2000
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