2020-06-25
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Practical guide for resolving a dispute

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Posted by Susan Hopcraft on 25 June 2020

Susan Hopcraft - Professional Negligence Lawyer
Susan Hopcraft Partner

Some practical tips for resolving a dispute

These are the headline practical things to do if you realise you have a commercial dispute brewing.  We have more detailed articles available, but here are the essentials to think about early on.

Gather the information you need. 

There will be key contracts and make sure you have the right version, the one signed.  There will be emails or letters and possibly key witnesses who will remember what happened.  Make a careful note of witnesses’ recollections. Depending on the issue there might be CCTV footage or screenshots to capture. You need to get that together at the earliest opportunity before it is lost, deleted or forgotten.  Review it carefully and keep it all safe and in good order.

What is the value? 

You need to work out the value of the issue or loss suffered. That might be in cash lost or paid, but also in terms of your reputation, the management time a dispute needs, plus staff distraction as they gather evidence.

Is the loss insured?

Do you have any form of insurance that might help such as credit insurance, revenue protection, business interruption insurance or legal expenses cover?  Ask your broker to notify a claim as soon as you know about it because there is nothing to lose by asking the question and there are strict time limits on notifying insurers.

Assess merits

What’s your assessment of which side is right?  Be honest.  You might think your business has been impeccable in its work, but what would an objective bystander say to you?

Consider options for resolution

What routes might there be to resolve this?  Can you ask for a ‘without prejudice’ meeting early to try and reach a settlement and minimise damage to all parties? (Without prejudice means that whatever you say can’t later be used in Court). 

If tempers are too high, is there an independent mediator or trade association who might help as a go between?  Is there a regulator or an Ombudsman or arbitration scheme you can use? 

In some cases you need to act fast to shut someone down from misusing your data or other property so don’t delay if that is the situation.

Solvency of other party

Is the other side able to pay you, or is there an insolvency risk there?  This could mean acting sooner rather than later is essential.

Do you need expert legal advice?

If the issue is becoming complex then think about a solicitor to help but ask about funding.  Can they act on a ‘no-win, no-fee’ agreement?  Do they have access to litigation funders and after the event insurance?

Once you have assessed these things a strategy might evolve but, even if it does not, you should have a clearer sense of whether to prioritise the issue, what the options are and how much resource you want to put into resolving it. You will also have preserved the vital evidence that you need if the problem does not go away easily.

About the author

Susan is a disputes and professional negligence lawyer, mainly in the financial services sector.

Susan Hopcraft

Susan is a disputes and professional negligence lawyer, mainly in the financial services sector.

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