My 7 top tips in dispute resolution
28th May 2015 by Fiona Hotston Moore
As a forensic accountant with over 20 years in practice I have assisted in a great number of disputes including commercial, employment, matrimonial, tax and partnership disputes.
Broadly there are two different methods of resolving disputes between two parties:
1. An adjudicative process such as court litigation, a tribunal (eg: employment) or an independent panel or arbitration. In this case a judge, jury, panel or arbitrator determines the outcome.
2. A consensual/collaborative process such as negotiation, mediation, conciliation or “around the table” discussion where the two parties attempt to reach agreement without resort to a legal process.
In litigation the forensic accountant often has a role giving an opinion on a financial, commercial or tax matter as an independent “expert witness”. We may be appointed as a single joint expert taking our joint instructions from both parties or we may be appointed by one party as a party expert witness. In either case our duty is to the court and we are required to examine the evidence and give our opinion on perhaps a valuation, an accounting matter or a loss of profits.
However, litigation is generally a last resort. It can be costly in terms of legal fees and it can take years to reach a conclusion.
Increasingly as forensic accountants we are involved in assisting clients reach a negotiated resolution of their dispute.
In my experience the key skills in dispute resolution are:
1. Act early – conflicts fester when ignored and inevitably positions become entrenched. Typically people are afraid of confrontation and shy away from it. Facing conflict head on is best for both sides and taking the initiative will win the respect of the other party. Be confident and assertive, whilst avoiding arrogance.
2. Plan carefully and explore the differences – it’s important to fully understand the matter in dispute, what each party wants or needs from the negotiation and what they may be prepared to concede. Listen to what is felt as well as said.
3. Manage your emotions – conflict triggers strong emotions even when you are not a direct party to the dispute and are assisting the parties. Do not attempt to negotiate or resolve a dispute when you are angry or upset. We inevitably respond to conflicts based on our perceptions and life experiences, values and beliefs.
4. Attack the problem and not the person – try to depersonalise the dispute and solve the problem as partners rather than opponents. Look to build empathy and use appropriate humour.
5. Avoid mixed messages and be prepared for periods of silence – women typically are uncomfortable taking an assertive position and will dilute the message by switching from assertive to “wishing to please”. Silence can be very effective whether a period of reflection in a meeting or considered silence in written communications.
6. Consider who should be negotiating - an independent third party or adviser can be effective in leading a dispute resolution rather than the parties who are driven by their (sometimes irrational) emotions.
7. Finally – celebrate agreement and move on!
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