We all know the annual ritual – new year arrives – we recognise the opportunity to make changes for the better – we come up with a set of New Year’s Resolutions (some achievable, some aspirational) – and that’s it – “job done” – virtuous feeling envelopes us and then…. we forget about them (apart from the occasional guilty moment when we do remember what we promised to ourselves and the fact that we only did it for a week or haven’t done anything at all).
So what’s this got to do with commercial dispute resolution?
Well, because most clients may not experience the legal process that often, they do not have a clear reference point from which to consider what changes might be prudent for them to make. On the basis of our experience, you are not going to be able to eliminate the potential for disputes to arise, but here are a few suggestions as to possible New Year’s Resolutions that, if adopted, are likely to help you achieve a better outcome for your business if a dispute should come about:
- Understand and manage your level of risk – when taking on a new customer or contract, think about the risks and the “what if’s” in case things might not go to plan (eg. how serious a problem would it be if you were to be late in delivering what you have promised?)
- Get it in writing! – for example, if someone says they will do x/y/z but you don’t have an accurate written record of what x/y/z are, how can you hope to get your money back when some part of what was promised is not delivered? Confirm in writing things that have been agreed verbally.
- Be vigilant for standard terms and conditions. Make sure that if you are agreeing to another party’s standard terms and conditions, that you have seen them, read them and understood them and, if there is anything you are not happy to agree to, negotiate an acceptable variation. Seek advice, especially if the contract is of substantial value relative to the size of your business.
- Keep detailed records and copies of all communications/documents. A party who can back up what they say with documents is more likely to be able to successfully argue a better resolution than one who cannot.
All you have to do now is decide whether you want to make any changes or let that guilty feeling gnaw away at you. The guilt (and regret) will only feel worse if you end up having to pay legal fees to sort out a dispute that might well have been avoidable altogether, if only you had done things better.