The Miami Herald Technology Law Column.

Byline: Mark Grossman

May 26--Tech-related deals sometimes lead to disputes, just like any other type of agreement. It might be a software-development deal gone sour, an outsourcing deal straight from hell or whatever, but things go wrong. When they do, lawsuits often follow. This is your "how to" on negotiating your way out of a major dispute involving technology.

Let's start with the end and work our way forward. I'm often asked why is it that disputes tend to settle only as the trial approaches. It turns out to be a complex question that defies a simple answer.

Part of it is that the parties use the discovery process (things like depositions and subpoenas) to learn about the other's strengths and weaknesses. This takes time but is nonetheless a necessary step, since neither party will be ready to talk until it has been through this discovery process.

Another issue is the purely emotional side. A lawsuit is essentially "civilized" society's way of handling warfare between its members. (I put "civilized" in quotes because, having participated in hundreds of hearings, I've watched many a lawyer act in a way that defies my definition of civilized.) Lawsuits are ritualized, expensive and complex, and sometimes I think not an improvement over trial by ordeal. Part of the ceremony is that people yearn to vent before they want to talk. It's all too human.

Yet another part of the answer is the lawyers. Now, don't get me wrong. Pure litigators are an important part of the legal profession, but so are soldiers. We need them both, and they both serve a purpose.

Still, you won't find too many soldiers who make great diplomats. It's a different personality type. If you want to negotiate early and seriously, I would suggest to you that the litigator is not the lawyer you want taking the lead.