“The Method” - An Approach To Address Issues Under CAPL Documents
I frequently receive calls requesting my insights about potential issues that a user is facing with one of the CAPL documents. There tends to be a pattern to the types of questions I ask about a particular fact situation and the manner in which I respond when I receive such a call or when I am assessing a potential issue in one of my own files. The article from CAPLA’s NEXUS hyperlinked below offers a pattern-based approach to issue analysis that I refer to as “the method”.
For context, there are two steps that I find are not given sufficient emphasis by users when considering a potential issue.
The first is to consider the broader relationship between the parties to assess the degree to which the perceived issue might not be the “real issue” at all, but a symptom of a much deeper problem with the parties’ overall business relationship that needs to be addressed.
The second is a review of the applicable provisions of the most current CAPL document to determine if that document provides helpful insights. The approach in the most current document may provide a platform for resolution of the issue with the other party. It may also provide a rationale for the de-escalation of the issue internally at an early stage if it is apparent that your initial position seems unreasonable relative to practices that are currently generally accepted. Reference to the current standard as an objective resource mitigates significantly the likelihood that a potential dispute will escalate unnecessarily.
This article was subsequently published in the March, 2020 issue of the CAPL Negotiator.