Regrettably, conflict is an everyday part of commercial life. Customers, suppliers, contractors and any number of other people you deal with will, on occasion, try and take advantage of you no matter how reasonable you might be or how unjustified their demands are. You feel violated and ripped off, but what do you do about it?
Often, talking a dispute through produces a result: both sides back down a bit and a compromise is reached. However, every now and then, you are convinced that you are in the right but the person on the other side refuses to budge. What do you do? Do you back down anyway because it is not worth the aggravation and the distraction from your core business? Or, alternatively, do you persist in negotiations, even though you feel as though you are bashing your head against a brick wall? Or do you see a lawyer?
Some business people are reluctant to employ the third option, ie consulting their lawyer. They fear it will be expensive, damage existing relationships and it is not worth the hassle. For others, it is a useful lever and they do not hesitate to give their lawyer a call.
A Dutch copyright lawyer and negotiator named Aernoud Bourdrez has published a book about conflict and how to resolve it entitled “Think Like a Lawyer – Don’t Act Like One”. I picked up this little volume a couple of weekends ago during a Sunday ramble down Ponsonby Road. On the dust jacket he claims to have successfully negotiated conflicts across more than 40 countries on behalf of visual artists, photographers, designers and architects. The book is snappy, well-illustrated and thought provoking.
One of the stories he told which resonated with me was about a photographer who is surprised to see one of his pictures in the foyer of a big international bank. The photographer contacts them. At first the bank disputes his copyright. Then they dispute the infringement. Then they dispute the amount of damages. And so on. After every concession, they stand and fight again. And the photographer politely follows each of their absurd retreats and defeats them at every new position. But he essentially gets nowhere: for all his battling, he wasn’t getting his damages.
The moral of the story according to the author is: if your opponent keeps coming up with new objections, don’t play his game. Take a different approach: roll out the big guns. Hire a lawyer or seek media publicity.
I too act for a number of photographers and have been in that position many times. But I would say that the above advice has broader implications. Don’t be afraid to call your lawyer when you think you’re being ripped off or getting nowhere in standing up for your rights. Frequently, early intervention in a dispute can save you a shedload of grief and time further down the track.
A reason frequently given by people as to why they don’t get their lawyer involved is cost. However, a letter of demand or a letter before action, as they are often known, is one of the cheapest things a litigator can do, particularly if you supply him or her with all the background and documents. If it produces a result then and there, you are happy to pay the fee because you’ve got what you wanted. If it doesn’t, you don’t need to go further or trip off to court and spend oodles. You will have a better idea of where you stand and what your options are and can cut a deal or back down at that point.
Another reason given for not going to their lawyer is for fear of harming existing relationships. But, ponder this: if this is the way they are treating you, how good is the relationship anyway? Alternatively, it may just be a try on and, if you stand up to them, they will treat you with more respect and not try it on again.
So, the next time you feel your blood pressure rising because your rights have been trampled on, don’t get mad, get even. Give your lawyer a call and she what he or she thinks. Any good litigator has been there many times before with other clients and will have creative strategies for resolving the conflict. The other great advantage is that they know the law, including the Fair Trading Act and the Consumer Guarantees Act which offer a wide range of remedies for many commercial situations.
Peter Spring has been a commercial litigator for over 30 years. He litigates a wide variety of cases with an enviable success rate. While he frequently appears in court, often he is able to achieve his clients’ objectives in a much speedier and less costly fashion. He is currently representing two of the Dotcom defendants in their opposition to the attempt by the United States to extradite them to that jurisdiction. However, he still has time to maintain his commercial litigation practice and is available to offer common sense and creative solutions to your particular conflict.
Peter J K Spring
Partner
Email: pspring@keegan.co.nz
Direct Dial: (09) 308 1805
Direct Fax: (09) 307 8831