SHIFTING GROUNDS: MUSINGS ON DISPUTE RESOLUTION

In every civilized society, being a lawyer or ‘lawyering’ as I fondly call it, is a tough job. For me, civilization means surrendering to laid-down rules which are called ‘laws’. Now, when people surrender to laws, it means that where and whenever they are aggrieved, they really have no battle of their own to fight. I honestly believe, that what is proper is that ‘the law fights for them’. In the midst of a grievance is when the job of a lawyer soars. We are employed or engaged to channel grievances through the right pathway and to ensure that the pain or hurt emanating from a wrong is remedied. This is embodied by the Latin maxim “ubi jus ibi remedium,” translated in English to mean ‘where there is a wrong, there must be a remedy’. This maxim is a widely, or I dare say generally accepted, legal principle. In seeking a remedy for clients, a lawyer is faced with the arduous task of navigating several legal landmines that may hinder the client's remedy, which may further aggravate the aggrieved. When a lawyer fails to take these steps, the fate of a client hangs in the balance, and in most cases, the integrity of the entire judicial system comes into question. One of the paths lawyers are advised to encourage their clients to take is the path of amicable resolution or alternative dispute resolution (ADR). ADR is a chiller method of resolving legal disputes by avoiding the uncanny fireworks of litigation. Disputing parties adopt mediation, negotiations, or arbitration to resolve conflict. As a lawyer, I have been involved at various levels in trying to amicably settle quarrelling parties. I can authoritatively say that, as pleasing or fanciful as ADR appears, it is equally a challenging task. Ironically, I sometimes prefer when a revered jurist presides over the affairs of warring parties. It’s easy to whip dissent into compliance as the judge's words are not advisory or opinions, but law. On the table of negotiating disputes is every kind of human emotion a person can think of. Pride, ignorance, cultural blocks, and every kind of vile one can imagine. Sometimes, ADR means compromise on rights and enablement for an obvious defaulter. Regardless, ADR is a necessary good or evil, depending on which suits your view. In a clime like ours, where most court cases have no closing dates, ADR is a bride to die for. To die for in this context means to shift grounds. To shift grounds means to let go. To let go means to lose some and to get some. In my years of practice, I have seen clients approach the negotiating table with big knives of ego and greed. Standing their ground on every issue with no room to shift. In such scenarios, I would happily refer them to the very spectacular wisdom of the court to help them shift some egos and cut greed to size by judicial pronouncement. I like the courts, no doubt, but my issue is the time factor. I advise clients to consider the time when approaching the negotiating table. Dante Alighieri, the Italian poet, said ‘The wisest are the most annoyed at the loss of time.’ The time spent in the pursuit of a matter is a thing of value and immense substance. It is indeed part of the losses in addition to whatever grievance there may be. When time is considered, progress may be made. The consideration of time is an essential quake that shifts ground on the negotiating table. Also, once a transaction ends in dispute, it is a prima facie loss, that is, regardless of whichever way it goes at the end of either litigation or ADR. A disputed transaction is heartbreaking and frustrating. For a start, it crushes expectations, and going forward, it is expensive; lawyers are not cheap. The safest spot is to avoid it, but when you find yourself in that position, by all means, act fast to come out. Fast may include alternatives, change of views, and reasonings. Fast includes fast, i.e. taking every given opportunity to mitigate losses. To be cast in iron is good but sometimes shifting grounds provide shelters in the strangest places. My advice is when you find yourself in a dispute, disagree with your dispute first and make a move out of it. We pray that change comes quickly to the timeframe for litigation, but while we have what we currently have, I beg you, ‘Make hay while the sun shines,’ or should I say, ‘A stitch in time saves nine.’