Giving Thanks For Alternatives To Traditional Litigation

Tribal CourtAs Americans celebrate Thanksgiving this week, children in schools across the nation are learning about how the first Pilgrims relied on Native Americans to survive their first year. That’s an important part of our history, but there is still a lot that we can learn from Native American tribes today, including how to use courts to resolve conflicts.

Did you know that there are about one hundred and fifty tribal courts across the United States? Unlike state and federal courts that use an adversarial system to resolve disputes, many tribal courts use a different approach.

The National Institute of Justice, an agency of the US Department of Justice, points out that while some indigenous justice systems are based on the American paradigm for courts, many others use a holistic philosophy that focuses not just on punishment and providing victims with payment, but on bringing harmony and peace to the community.

According to the NIJ website:

“The holistic philosophy is a circle of justice that connects everyone involved with a problem or conflict on a continuum, with everyone focused on the same center. The center of the circle represents the underlying issues that need to be resolved to attain peace and harmony for the individuals and the community. The continuum represents the entire process, from disclosure of problems, to discussion and resolution, to making amends and restoring relationships.”

Sounds a lot more constructive than traditional litigation, for sure. Because of its many benefits, US courts have adopted some of this philosophy in recent years and now actively promote alternatives to litigation like mediation and arbitration. Not only is alternative dispute resolution usually much less expensive, aggravating and time-consuming than litigation, it has a tremendous success rate.

It’s so successful, in fact, that state and local governments around the country fund mediation programs and strongly encourage courts to utilize them. Unfortunately, many people still don’t even know these programs exist and often unnecessarily spend tens of thousands of dollars on lawyers when their problem could be better resolved in mediation or arbitration.

One big reason for this is likely that we’re bombarded with ads by personal injury lawyers and rarely hear anything about mediation or arbitration in the media. If we counted how many ads there are on TV for personal injury lawyers compared to ads for mediation services, I’d guess there would be about 100,000 ads for personal injury firms for every one ad there is for mediation, and that’s probably being conservative.

Mediation and arbitration aren’t going to work in all disputes, but this Thanksgiving, it’s important to know that alternative dispute resolution is available, and it often leaves people thankful they ditched their lawsuit and tried something new. For more information, one great source is the National Association for Community Mediation.

The Ongoing Legal Battle Over The World’s Most Famous Song

birthdaycelebrationHave you ever wondered why the waiters and waitresses who sing a song when they serve a birthday desert in a restaurant almost never sing the famous “Happy Birthday To You” song that you sing at home? It’s usually a song and tune that they or someone else working for the restaurant made up. They use a different version because if they used the famous song, their restaurant could be sued. However, a recent court ruling may change that.

A little background. Since 1988 when Warner Music bought the copyright to the “Happy Birthday To You” song, restaurants, television production companies and others wanting to use the song for commercial purposes have had to pay a large licensing fee to Warner or risk getting served with a lawsuit. According to some reports, Warner collected as much as $2 million per year in royalties they earned from licensing the song to others.

All that is going to change now because a federal judge ruled that Warner doesn’t hold a valid copyright to the song. To make a long story short, U.S. District Judge George H. King ruled that the copyright Warner purchased in 1988 doesn’t apply to the version of the song we’re all familiar with. For a good summary of the history of the litigation that cost Warner the rights to the song, check out this Washington Post article.

Just because Warner won’t be making money off the song doesn’t mean someone else won’t, though. The song was written by sisters Patty and Mildred Hill in the late 1800s and was eventually published in several song books. The copyright Warner purchased came from the publisher of just one of those song books, so one of the other publishers or someone else could step forward to claim ownership of the song now. Or, a court could rule that the tune the Hill sisters used was already public domain, so everyone would then be able to use it.

While the battle over the song continues, you can see an entertaining montage of how TV writers have changed the song over the years to avoid being sued by clicking here.

Worldwide Survey Of Litigation Trends Reveals Grim News For America

world with gavelCompanies in the United States are now facing more than twice as much litigation as companies in other countries. That’s the disturbing finding of a survey recently conducted by the third-largest law firm in the world. Click here for a summary.

The firm, Norton Rose Fulbright, which happens to be the largest law firm in the world based outside the US, conducted a poll of more than 800 corporate counsel representing companies across 26 countries, and the results are not good for American companies or the job seekers who would like to work for them.

While the survey is performed to identify litigation trends across the world, what it reveals about America’s addiction to the legal fix should make lawmakers here sick. Nowhere else in the world does the legal system suck as much money out of the production of goods and services as it does in the United States. Click here for a pdf file of the survey.

It’s not getting any better, either. According to the survey, the number of US companies spending at least ten million dollars a year on their lawsuit budgets soared nearly fifty percent in just the last two years. Fifty percent!

What kind of lawsuits do companies have to spend so much time and money defending these days? According to the survey, a growing percentage of the legal action against companies is being brought by their own government. Consider this:

“…more US respondents say regulatory/investigations are a top concern compared with the broader sample (48 percent to 39 percent).”

In other words, half of the companies that do business in America are concerned that they’ll be investigated by a regulatory agency. Of course, this is not news to any job providers reading this. However, it may be news to lawmakers who have been elected on job creation platforms across the country because there are so few studies that compare the level of litigation in America with other countries.

In addition, the poll also reveals that:

“personal injury litigation is significantly more prevalent in the US than in other countries, with 21 percent of respondents selecting it as one of the most numerous types of cases they faced in the previous 12 months. That compares to just 15 percent in the survey overall.”

Now, it’s no surprise that the US is the most lawsuit-happy country on earth, but this survey confirms that this problem is growing faster than many have believed. With the US government reporting that the economy slowed to a crawl in the most recent quarter, the last thing job seekers need is companies having to divert precious financial resources from job creation into fighting lawsuits.

This column originally appeared in Townhall.com on May 24, 2015.