22 November 2011 by

Disputes - No place for emotion

If humans were always reasonable, rational, unemotional and honest, there would be few disputes and dispute resolution lawyers would be out of work.

The reality is very different. People are emotional, they do fight and as a result dispute resolution lawyers are busy. To varying degrees emotion plays a part in every dispute. There is also frequently a volatile mix of people on both sides of the dispute. In some cases a party will belligerently defend a position as they equate compromise with capitulation. Others are so confident of their own position that they are indignant at being involved in a dispute resolution process at all. Commercial disputes are often coloured by emotion as the stakes are high both for the commercial enterprise and the individuals responsible. The emotion displayed by a client in a matter can influence the behaviour of their lawyer at the expense of the lawyer's objectivity.

Disputes are usually unpleasant and dispute resolution services are invariably a grudge purchase for any business. Even for the winner, the costs are never fully recovered and the time spent focusing on the dispute is often a substantial drain on the business. Whatever the difficulties and however flawed the process, disputes do get resolved. The majority are resolved by the parties themselves often with the assistance of lawyers but without ever going to trial. Ideally those disputes that do reach a trial should be restricted to those issues that actually require a legal determination but time and again personalities and emotion drive the process, not complex questions of law.

Too often lawyers adopt a blinkered approach to dispute resolution without any lateral thought. They also become emotionally involved in their case taking on the attitudes and interests of their client and in the result the wider interests of the client may be overlooked or even ignored. Opportunities for settlement or major tactical advantage present themselves unpredictably and sparingly in the course of a dispute process and it is vital that the potential of a situation or a document is recognised. This requires a mature and sober analysis of the matter itself combined with an understanding of the client's business. An overly aggressive approach leaves little room for compromise where that compromise may result in a settlement that is better than a win.

Tim Fletcher. Dispute Resolution

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