Barrister & Company Secretary Caroline BuchanChambers of Miss C Buchan
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January, 2012
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dispute resolution
I recently had the pleasure of attending a RICS conference on the topic of Dispute Resolution. Naturally given the host it had an emphasis on the construction industry which has delivered up a lot of case law revolving around breaches of contract and negligence. “Dispute Resolution” is a term that many often associate with full blown legal disputes. It can however relate to any disagreement, possibility of a disagreement, pre-action correspondence, legal dispute and any other stage in a “dispute”. Applying dispute resolution practices at any stage could potentially help to prevent a dispute going legal and the consequent breakdown of relations. Whatever a dispute looks like it is worth noting that the estimated value of cases mediated every year amounts to £9 billion. Mediation saves businesses an estimated £2.4 billion a year in lost management time, damaged relationships and legal fees. What was most fun and what I wanted to share were some often overlooked dispute resolution techniques and ideas that when remembered can really make a difference. This can be hard for us lawyers to keep in mind when our instinct is to get the best result for our client. The most obvious in the context of the life of a building project has to be having a more collaborative approach; a team spirit. Suggestions that arose out of the Kings Cross development, recognising the value of personal contact, included using teams from across the disciplines located at the same venue, holding joint risk and value workshops and discussions, holding joint decision meetings at all levels of decision making and involving the key subcontractors. Specific to the construction industry is the suggestion that there is regular contact with the designer because design delay will generally be problematic. All these could serve to engender mutual trust and co-operation whereas hiding behind email and legal teams will not. There are probably many other areas of commercial life when such an approach could help facilitate a better working relationship. Think about building teams like with the Kings Cross project and allow space for meetings and for relationships to grow. Use plain English. If there are lots of confusing acronyms try using a white board or flip chart to write them out. Where agreement on actions is reached document early and circulate as soon after the meeting as possible. The individual mindset is crucial. Do you assume everyone is intending to be as positive as possible or do you automatically assume everyone is out to be awkward? Do you view mediation or some other form of resolution with the attitude of wanting to get it over with or do you go into it looking for a genuine resolution? Are you going to look for areas of commonality or difference? Try an attitude of “this will go well”. Some more interesting considerations: as in life, “little things make a huge difference”. Do you convey respect and show that you value what the other party has to say? Do you consider any constraints that there be upon the actions of the other party? A number of problems can arise due to the lack of good manners so remember to be civil and courteous. If you need time out to fume take it so you don’t vent and damage any progress made. Consider where people are seated. Apparently dark eyed people are less bothered by light in their eyes than blue, green or grey eyed people. I never knew that! Remember that you always have a choice. Your perception of yourself is how difficult it is for you to change. Temper confidence with reality because the impact apparent confidence can make can actually be quite damaging. Consider the impact of showing vulnerability and letting the other party know you are human and open-handed. Are you present when you are in a meeting or someone is talking to you? It is so easy to let the mind wander and plan what you want to say next. Unless you are really listening others will be aware that you are not wholly present which will erode any confidence in what you say and the process as a whole. Smile, nod and affirm what has been said. This builds a positive environment. Really think about what you’re saying and give the other person/people time to take it in. Think about your attitude and tone of voice. Remember to take a breath. Remember to say “thank you” when the other person has finished speaking. The speakers were: Jonathan Cope, Ian Fry, Fred Garner, Peter Aeberli, Jacqui Joyce, Elizabeth Rope and Philip Morrison. A particular mention should be given to Sheilina Somani who gave us so many fascinating thoughts to consider in what for many would have been the graveyard slot just before home time. Caroline Buchan Direct Public Access Barrister & Company Secretary
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