Who's In Charge?

We owe it to ourselves to be responsible consumers. Every day we make choices about what it is we consume, from the brand of tooth paste, to the coffee we drink, to the computer we buy and to the vacations we take. We spend a great deal of energy thinking about the options. I am often amazed by the lack of thought we give to making the really important choices and decisions which face us.

A friend of mine has been diagnosed with breast cancer. She accepted the diagnosis and the proposed treatment without question, apparently with blind faith, never considering a possible second opinion or some of the different options available to her. I am guilty of sending my children off to the local schools without ever making an attempt to find out what those schools were all about, and whether I thought they would provide what I believed my children to need.

How about the choices we make surrounding disputes? Disputes are essential to our personal and business lives. How else do we learn where improvements are needed? We need the constant feed back about where the products and services we sell need improvement or modification. Granted these need not turn into major confrontations, but the way we deal with the small ones may have something to say about how we deal with the large ones.

When we receive a call from a customer who is not satisfied with whatever it was we sold him do we listen empathetically and try to understand where he?s coming from or do we retort defensively? The successful business person will try to learn something from the problem and how the product might be improved.

And then there are disputes over larger matters which can so easily get out of hand. The product we?re talking about is no longer an electric drill that failed to do its job but a large diesel generator which shut down with a consequent costly loss of business to the owner of the machine. Many thousands of dollars are involved.

The angry call is received and tempers flare. Livelihoods are at stake. Reputations are threatened. Client relations are on the skids.

The culture in our commercial community is to hand the matter over to lawyers and thank heaven that there are people around who will take charge of the difficult matter. After assessing the situation, the lawyer is trained to commence an action and the litigation process moves forward. It does not move fast and it is very expensive, but it does lead eventually to a judgment or, with luck, to settlement before the judgment is made. Yes, we take time to retain an experienced lawyer, but do we consider the different approaches we might instruct our lawyers to take?

The fact remains that it is the disputants who are in charge and they have choices around how best to deal with the problem. Certainly one is free to admit fault and cover the other?s losses, but his is not necessarily the reasonable solution. Lawyers need to know how you, the client, wish to proceed. Litigation is certainly an option but it may not necessarily be the most efficient or least expensive way of dealing with it. Because of its adversarial nature, while a final result is obtained, it may be at the cost of reputations, client relations and, certainly, a great deal of money.

Parties are free to try to resolve the dispute through face to face negotiation, with or without counsel. Failing that, they may well be advised to retain the services of a neutral mediator who will sit down with the parties and ensure that a collaborative negotiation takes place, exploring with them some of the possible solutions. The negotiations are confidential and all matters discussed are without prejudice, which means that they cannot be used in court at a later date.

To have the dispute resolved through arbitration is yet another option. Here the parties agree on an arbitrator who most probably is knowledgeable about the matters in dispute, through specific training or experience in the area. For instance, parties to a dispute in a marine insurance matter may wish to retain an experienced marine surveyor to assess the reasons for damage and the costs of repair.

The arbitration can commence as soon as the parties are in agreement about the process and the arbitrator. The process, while less formal than court proceedings, is structured to ensure that relevant evidence is reviewed and that parties and counsel are able to present their case fully. The final award is binding and successful appeals are rare.

So it is the parties to a dispute who are in charge. It is they who decide how the matter should be dealt with. They can do this at the time they make their initial contractual agreement, by including a clause which allows for mediation and/or arbitration should a dispute arise, or they can agree to use one these options at the time that the problem develops. As with any good consumer, they need to make sure that the process they select best meets their needs and objectives.