Perspectives on disputes

This is another collection of LinkedIn posts that I have done in the past. These are about the different perspectives that parties can have about disputes.

I heard an odd story about a dispute today.

One party came away from the dispute happy. She felt vindicated. She also felt good within herself for standing up against behaviour she thought was wrong.

The other party felt overwhelmed. She was worn down by the dispute. She was embarrassed by the public criticism of her actions.

The odd part was that technically the first party had lost and the second party had won (they had to bear their own costs). And it had been the second party who had started the proceedings.

It was a very unusual situation. But a reminder perhaps that people’s motives for pursuing a dispute can be very personal; and so can be their reactions to the outcome. And people need to think very carefully before starting a claim.

Do you love your arbitration too much?

On the plane yesterday the film “Stockholm” was among the selection. It’s about the bank robbery in 1973 from which the term “Stockholm syndrome” was coined - where a bond is formed between captors and captives in a hostage situation.

I often wonder why disputes are not settled earlier, and why they persist. Perhaps the participants become trapped in the process. Perhaps they start to fall in love with it, even though they want it to end. It may give them self-worth, and status in the eyes of others. They may mourn it when it comes to an end.

Or it’s like a good detective story, and they want to know what the denouement is, before putting it down.

Disputes are rarely simply about the money. Often they are about the people involved, sometimes they become about the disputes themselves. They bind us in.

Do you see arbitration?in 3D? I asked some junior lawyers at my firm this a few days ago.

Akira Kurosawa’s film “Rashomon” tells the story of a murder from the viewpoints of several different characters: a samurai, his wife, a woodcutter and a bandit. Each has their own different take on what happened.

There are many different viewpoints in arbitration. Lawyers usually focus on their own viewpoint. Sometimes they think of how the case looks through the eyes of the opposing counsel. With difficulty, they imagine how the arbitrators see what’s going on. Rarely, they put themselves in the shoes of the clients.

And that’s without thinking of the viewpoints of others who might look on at times, such as a judge in an enforcing court, a major shareholder in the client, and, occasionally, the public at large.

The ability to focus can be a valuable skill but so is the ability to see things from several different angles.

I have seen both parties and lawyers behave like children in disputes (particularly at the end of an arbitration), stubbornly rejecting any other view.

We are all the heroes of our own stories. For the most part, our stories align, or at least remain safely apart. But when they clash, disputes arise. And it is the contradiction of those stories that we find so difficult. We cannot bear being hero of one and villain of the other.

Often, the only way we can resolve that conflict is by stepping outside both stories and getting a different view on what has happened. Sometimes we adopt that different view voluntarily (through mediation). Sometimes it is imposed by a third party (through arbitration).

And if we do not accept that different approach when it comes, we remain locked in our own reality. Emotional maturity comes from accepting that we are not right all the time.

I met a successful claimant in litigation yesterday. She didn’t celebrate her success.

She didn’t complain about the amount of time or money she had spent on the case, although both were substantial. Nor did she complain about the fact that she gained only part of what she had claimed.

But she had clearly been changed by the experience. She seemed hardened by it - haunted, even. Clearly it is going to take her many years to recover.

I think litigation and arbitration?serve a vital role in any society governed by the rule of law - but parties must approach it in a clear-eyed fashion.

I also think the benefits of mediation?should often be assessed more by the costs that one may not be able to appreciate fully at present, than by those that can be estimated in a spreadsheet.

A friend of mine has told me about a dispute he’s involved in, in which there was an extraordinary verbal outburst by one litigant against another.

It’s natural for feelings to run high in disputes but I can’t help thinking that a litigant who has reached such a state has already lost. Lost because he won’t be capable of making clear-headed decisions, meaning he will be drawn passively through the litigation rather than actively making the best decisions for himself. Lost because whichever way the judgment goes it will be at the cost of his own peace of mind.

This reminds me as well that litigation is not set up to deal with all dimensions of a dispute. That’s probably a good thing, because issues need to be examined dispassionately. But it’s easily forgotten by parties, who think litigation is a panacea.

Parties need to see a dispute as a complex system, and use a combination of methods of tackling it: litigation or arbitration to answer the legal questions, mediation?to address the personal. They also need the support and guidance of others to handle it (including, but not solely, the support of good legal counsel). Approaching a dispute in a one-dimensional way and without proper support invites ruin.

I once knew a man who refused to settle a dispute out of fear. Not fear of having to pay something. Fear of having to face up to the fact that he might need to accept he was wrong.

It seems perverse for him to feel more comfortable with going in front of a judge and being told he was in the wrong (which is what happened). But parties can always rationalise away a judgment - they can say the judge made a mistake.

It can sometimes take courage to accept responsibility (or to accept that the other side might not be fully to blame, which might be almost the same).

Pictures by Birger Strahl, Robert Zunikoff ?Diana Satellite, Ryan Franco, Maria Molinero, Christian Buehner, Joyce McCown on Unsplash.