Barrister & Company Secretary Caroline BuchanChambers of Miss C Buchan
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Not so Transparent
Transparent about conflict?
 
How many times do you hear a reference to the concept of "transparency"? I would say that aside from the fact that I have been thinking about it so am more likely to notice the use of the word, I have probably heard it 6 or 7 times since breakfast on the Radio. It's one of those words that can cause me to role my eyes along with "appropriate" or "best practice".
 
There has been a lot of emphasis on transparency for public and government bodies, politicians, charities, NGOs and public limited companies accountable to shareholders and the public. This might include avoiding abuse and unnecessary costs through a tendering process, choosing candidates on a fair basis and only rewarding good leadership and results. It is a trend that has followed hot on the heels of major corporate scandals and with current economic problems one that can potentially expose financial weakness.
 
The Government's transparency obligations advise that "there is a presumption in favour of transparency" when considering what documents should be published. This includes keeping all documents and records and being clear what might need to be disclosed, ensuring suppliers are aware of the commitment to transparency and having appropriate terms in their contracts, making sure only the right information gets published bearing in mind data protection requirements and providing information on a website to explain the procurement or employment process identifying how transparency commitments can be achieved.
 
Working with a handful of NGOs significantly supported by DFID I saw the need to be seen to do the right thing that can burden an NGO even when choosing the business location and very objects of aid. Whether a country is a tax haven or provides a preferential tax regime will be relevant to transparency and anti-corruption considerations.  Mauritius, for example, is really the only base for business in Sub Saharan Africa but is most tax efficient way.  
 
The introduction of the Bribery Act was another step towards greater accountability.    There have been prosecutions but I suspect most companies have sufficient systems in place to be compliant.
 
The act of doing the right thing can obscure reality. In court a judge will retire before bias can be inferred regardless of how impartial he is.
 
Western corporates satisfy good governance supported by legislation by revealing stats on green policies, employees and directors' remuneration. The AGM and Annual Report will be a company's opportunity to be open with shareholders and stakeholders. Not to say that figures can't be fudged by focusing on salary rather than perks.
 
Frequently out of court settlements avoid adverse publicity as well as costs. The recent settlement by Pheizer in the USwas part of the US government’s emphasis on combating health care fraud initiative. “Whistleblowers play an important role in protecting taxpayer funds from fraud and abuse,” said Tony West, Assistant Attorney General of the Justice Department’s Civil Division.  “Settlements like this maintain the integrity of FDA’s drug approval process and support important federal and state health care programs.”
 
Parties go to court on the basis of assumptions and a sense of entitlement. I lost count of the number of defendants in road traffic arbitrations who had "assumed" the other party had seen them or interpreted their actions not in the way they were intended.  
 
When positions are misunderstood bad feeling and conflict arise from simple misunderstandings and poor communication.
 
One party may assume his needs and expectations are obvious when really they are far from being so. Unmet expectations and needs cause disagreements and extreme reactions to apparently small triggers.

The trick is in how we choose to react and how we choose to respond to others. It can be a trap to avoid or ignore the feelings or behaviours of others and unhelpful to respond in kind. Temporary solutions used to manage the situation, perhaps stuffing down natural feelings and inclinations to avoid the conflict, enable an increasingly severe and recurring conflict situation.  
 
More than simply improving communcation and understanding, parties should try to really connect with the other person and acknowledge how they feel not assuming that what is important to one is going to be important to the other. I have heard it suggested that those we call bad are simply those that can't empathise. That seems too simplistic but it certainly helps to put oneself in another's shoes. Asking questions can help identify the cause of a problem. I find these simple approaches useful during mediations and arbitrations.  

We don't always understand ourselves well enough to be transparent and understand our motives and how can we get along with others before we know ourselves? How many live roles and identities that make them unhappy? How glibbly we say life is too short but stay stuck in the same situations? A good friend quoted some Shakespeare to me recently:
 
"This above all: to thine own self be true,
And it must follow, as the night the day,
Thou canst not then be false to any man.
Farewell, my blessing season this in thee!"
 
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