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"May you become involved in a law suit where you are right"

This old Chinese saying is becoming more appropriate by the day for the window industry. Only the unwary man becomes involved in a legal battle and being right can sometimes make it worse because it is easy to lose a sense of perspective and continue even when the case is effectively lost. 

The growth of the window industry has led to more interaction with the legal profession as operations have become more complex, but it is important to recognise that the law and justice are not always the same thing. A law is a rule established in a community to compel or prohibit certain actions whereas justice relates to the more abstract concept of fairness. There is nothing that says a law must be just and the relationship between the law and justice is sometimes not clear. This even happens in criminal law: an old man is burgled and beaten and waits months for compensation; the burglar is held in gaol for a weekend too long and gets immediate compensation for deprivation of his human rights. This may not seem fair but it is certainly what the law requires!

In a civil action the legal system is based on an adversarial process where one party is right and the other is wrong. However, in most cases there is an element of error on both sides. Even when your case is just, there is no guarantee that the law will eventually find in your favour and in any event it may be considered that you contributed to the problem in the first place. Cardinal Richelieu once said "Give me 6 lines written by an innocent man and I will find something to hang him". In any commercial dispute where you have written more than 6 lines, a good barrister will find something in what you have written to indicate some fault on your part. Being right is not always enough to win in the legal system.

From a commercial view the other consideration is the time factor. Nothing loses its fascination so quickly as a law case. The initial excitement is soon overshadowed by the dreary reality of filling out forms, making statements and trying to find those vital documents that you thought you would never need again. The energy required in management and concentration terms is enormous and despite their duty of care towards their clients, legal practitioners are not unaware that their fees are larger the longer a dispute goes on. I have been involved in several legal cases and they have dragged on and on while the legal fees rose and rose and the cases became ever more irrelevant to the actual running and future of the business. The cases were concluded, more with a whimper than with a bang, but the end results were not worth the effort involved, despite the fact that we were clearly in the right and even the other parties acknowledged this. 

How can a dispute be resolved without taking a chance in the courts? 

A new way forward is to involve a mediator to assist in achieving a mutually acceptable (or even mutually unacceptable) solution. It is important to note that the word used is mediator and not arbitrator. Arbitration suggests an arbitrary decision based on a judgement but the mediator is neither judge nor jury. The mediator attempts to help the parties in the dispute to achieve a "win-win" result which they can all live with and which is agreed by all parties. This new concept is rapidly gaining ground as an alternative to formal legal action: the Lord Chancellor, Lord Mackay, in his recent White Paper on Legal Aid, has even suggested that legal aid be available for a range of dispute resolution methods such as mediators and advice agencies while the RICS has established a scheme for dispute resolution via mediators as part of the Alternative Dispute Resolution process.

The function of the mediator is not to reach a judgement but to enable the reaching of agreement. This requires that the parties want to achieve a solution to the concern rather than a win at all costs. In marriage guidance terms it is similar to using Relate to achieve an amicable solution, rather than going straight to the solicitors with the aim of dealing the death blow to the former partner. The marriage may never be saved but the parting, whilst such sweet sorrow, is easier for each partner to deal with and move on from. In business a deal can go wrong at many stages. A customer specifies a machine incorrectly to a supplier who delivers the machine to the specification. When it doesn't work, who is to blame for the eventual losses? The customer blames the supplier for the machine's failure to work but the supplier blames the customer because the machine was incorrectly specified - recourse to the law is will be both costly and time consuming to both parties.

In such situations there is both a technical and commercial component to the concern and any eventual agreement is neither purely technical nor purely commercial. To resolve the concern and reach an amicable agreement requires a mediator with a unique understanding of both the technical and commercial components. 

To provide such a service for the glazing industry Tangram offers a technical mediation service. This service is based not on confrontation or arbitration but uses mediation to generate a "win-win" solution, allowing the companies to move on to the future rather than look back and dissect the past. The experience and skills of Kent and Rigby ensure that this process is solidly grounded in the realities of the glazing industry.

In the mediation process, Tangram is appointed by both parties who agree that a quick "win-win" solution is better than a lifetime in the courts. A practical approach is taken by assisting the parties to reach an agreement to the dispute rather than allocating blame and cost. If no agreement is reached then the parties are free to reach for their lawyers to resolve the dispute. The whole process is "without prejudice" and the mediator cannot be called upon in any subsequent proceedings for either party. Thus there is no benefit to the mediator in not reaching an agreement and there is no question of partiality by the mediator.

So do you need a service like this? 

The answer at the moment is probably "No" but you might in the future. If you want a commercial dispute to be settled both commercially and quickly then mediation provides a real alternative. Of course, you may prefer to become involved in a law suit where you are right

Last edited: 11/03/10

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