Mechanisms that resolve a fifty-fifty split without a judge.
Esshaki Legal Media TeamCurrent as of October 2024
Equal ownership feels fair at formation and is the single most common structural
cause of litigation later. Deadlock provisions are the cure, and they must be
drafted before the disagreement.
Tie-breaker director or member. A neutral third person with a casting vote
on defined matters. Simple, cheap, and dependent on finding someone acceptable
to both.
Mediation then arbitration. A staged escalation clause, with a defined
timetable and a named provider. Effective for operational disputes, less so for
questions of who should own the business.
Buy-sell triggers. A shotgun or Russian roulette clause, under which one
party names a price and the other elects to buy or sell at it. Elegant in theory;
in practice it favors the party with liquidity, and a wealth imbalance should
be addressed by requiring proof of funds or by using an appraisal instead.
Put and call rights at a formula price, exercisable after a deadlock is
declared and a cooling-off period has run.
Appraisal-based buyout. A defined valuation methodology, named appraiser
qualifications, and a mechanism where each side’s appraiser selects a third.
Dissolution as backstop, with an agreed wind-down process and a right of
first refusal on the assets.
What to avoid. Silence, and provisions requiring unanimity for ordinary
operations, which convert every disagreement into a shutdown.