As lawyers, we often find ourselves engaged in matters where a disagreement has advanced to the point that the parties can no longer address the points of contention themselves.
As we become litigious on our client's behalf, we often look back through the matter (via our instructions and disclosure material) and advise our clients on potential issues and the shortcomings in both their argument and that of the other side.
When we do this, we are afforded the benefit of hindsight, which makes everyone an expert in 'what should have been done.' However, given that we, as lawyers, are afforded this benefit across a wide variety of disputes, we thought that we might share some of this hindsight.
This article raises some of the issues we see causing the initial conflict, which often gives rise to litigation, and also, makes suggestions as to how to handle a matter that looks certain to end up in court.
Most commercial disputes arise because party A believes something ought to happen, and party B things something else should happen. This something could be the payment of a certain amount, a deadline, use of some form of property, you name it, parties have probably argued over it.
The cause of the disagreement isn’t necessarily that one or both of the parties are unreasonable either. Generally, it is the case that a miscommunication has resulted in expectations being unmet. For this reason, we opine that the best way to proactively mitigate conflict in a commercial context is to effectively communicate.
This, obviously, includes entry into a well written contract and providing effective terms of trade prior to getting any arrangement underway, however, it also requires constant communication between the parties as the project continues.
Foreshadowing potential issues, reacting quickly to unforeseeable issues and providing a clear commentary on the implications of the issues and also options on addressing the issues are all vital aspects of effective communication.
Finally, following up the other party to ensure they have considered, and understood the issues so that they can be addressed in a timely manner shows at the very least you are proactive and ultimately, may avoid making a mountain out of a mole hill.
This may seem obvious, however, rarely is this done effectively when we review matters with the benefit of hindsight.
Ok, in some cases, the conflict and/or litigation is unavoidable. We are of the view that one ought to treat every matter as though litigation is on the horizon. Why? Well it ensures concise and clear communication, great record keeping, and, in the event the matter does proceed to court, your costs are minimised and your prospect of success increased.
With hindsight, we can tell you that, as your lawyers, we’d prefer our instructions look as follows:
Clearly written amendments to the scope of a project. You would be surprised to learn that most projects experience scope creep. This is usually addressed by the parties, however, rarely are the amendments effectively recorded. Ironically, it is usually the scope creep which is not in the initial agreement that is the basis of the dispute.
Correspondence that addresses every major incident and/or discussion. This, effectively, forms a file note of something that has occurred factually. Someone reviewing this information can quickly identify the issues, and also identify how each of the parties dealt with those issues.
Telephone conversation file notes. Most normal people (ie, not lawyers!) deal with issues over the telephone. It is quick and often more effective to explain something in this way. However, this creates a ‘he said, she said’ situation in the event what is discussed, is disputed. We recommend following up the other party with an email confirming the discussion, this creates a date stamped file note. If the other side doesn’t raise any objection, then it may be reasonable to rely on the contents (or certainly assist in creating a compelling argument that one ought to have).
Keep the communication reasonable, professional and avoid emotion. Every piece of correspondence that leaves your office ought to have been drafted for the benefit of a judge. If you would not like to see that correspondence in an affidavit on the court file, then don’t send it. A judge will be faced with evidence from both parties, at the same time. The benefit of being reasonable, professional and unemotional is that, when compared to a party that is being none of those things, you are perceived in a better light by the court.
The age old saying “prevention is better than a cure” is rather poignant when dealing with conflict management. Therefore, with a few minutes spent recording your dealings and clarifying with the other parties, one can mitigate their risk of conflict spiralling out of control. In the event it does, the same measures can greatly assist in enforcing your position in court.