Let’s Get Ready to Rumble

On 4 September 1994, Telstar Records released the debut studio album by a new British recording duo. The album reached no. 5 on the UK Albums Chart, and was ultimately certified Platinum. Such was its success, it was even reissued in Japan and Singapore in 1995. And the album went on to play a key role in making Ant & Dec the entertainment legends that they are today.

But with the album title being “Psyche”, and the most popular song on the album being called “Let’s Get Ready to Rhumble”, believe it or not it is also an album with a lot to say about how best to handle disputes and disagreements.

Welcome to Step 1 in the Relationship First Law OS: Disputes edition.

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You can do everything right with your contracts - know your partner, build a fair deal, use a sensible contract, pro-actively manage the relationship, and be open and adaptable – and yet things can still go wrong. That's just business (and life).

Because business (and life) involves people, and people are emotional and people do irrational things.  So even if you do everything you can to be collaborative and build relationships, disputes will still happen.

When they do, you may be tempted to doubt that being collaborative was the right thing. Resist that temptation. The dispute is not a failure of that approach. This is not the time to wonder if you’ve been a mug.  

Instead, a dispute is the time to double down on that non-combative approach.  Because, while it may sound paradoxical, there is huge scope to be collaborative rather than combative in your disputes. And there is a lot of opportunity to be seized if you do still choose to put relationships first in your disagreements.

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It’s 2012. I’m in my first week as General Counsel at ASOS. And I’m staring at a High Court claim that had landed on the desk the month before and that no-one had mentioned before I joined.

Being honest, I’d not seen too many claims before. Litigation had never really been my thing, even from my degree days. I certainly didn’t become a lawyer because of a moment of inspiration that struck while watching Rumpole of the Bailey or Judge Judy.

So when that claim was put in front of me, I’ll confess that I immediately played the ‘new boy’ card.  I asked what the two existing members of the team thought.

“Don’t worry Andrew”, they tell me. “Our solicitors say we’ve a 70% chance of winning”.

“Ah, well that’s sounds pretty peachy”, thinks me. We’re strong favourites in this race, so I’ll leave this claim with these two and instead focus on getting up to speed on everything else in this rocket ship of a business.

I’ve made many mistakes in my life. But there’s been few bigger ones in my career than that piece of spectacularly dumb assessment. And it would take me 18 months until I learnt that. The very hard way.

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You see, your dispute is not really about what you think it is. 

You may think your dispute is about money: getting what was promised to you, getting the money that you’ve built your budget on.

But it’s not.

Maybe you think your dispute is about justice or fairness: not letting someone get away with breaking their promises or behaving unconscionably or issuing unreasonable demands

But I promise you it's not.

Or perhaps you think your dispute is all about ‘the law’: about someone not doing what their country has mandated them to do.

But its definitely not about that.

Deep down, your dispute is actually about something completely different.

That 70% success figure from our solicitors was probably correct.

We did successfully defend the claim in the High Court. And again in the Court of Appeal. So problem wasn’t necessarily the maths. The problem was with the question. 

Because it turns out that “what are our chances of success?” was not the right question for me to consider. Those successful defences in the UK courts didn’t stop the dispute. Instead, it just caused them to re-appear with a vengeance in four other countries.  Winning didn’t fix the issue. And that’s because our dispute was not about “the law”. 

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In every single dispute or disagreement, there is a clear difference in how two businesses or people feel about the same situation. The key word there is “feel”. That disparity of feeling is the one common thread that runs through every single dispute , no matter the actual subject matter.

And if all disputes involve feelings, your dispute is actually about psychology. Not money, not justice, not the law, not chances of success. Psychology.

Your dispute is about the fact that the other person does not think the same thing that you do, and does not feel the same way you do.

As a result, a resolution to your dispute only comes by changing the way one or both sides think and feel, so you and they can reach an accord. Only with a changing of minds will you get peace. Only then can you move forward.

Everything you do in trying to resolve your disagreement must be evaluated through that psychology lens. Your sole focus should be on doing things that are likely to change their mind towards yours, and avoiding doing things that will make their views of you or your business or the situation more entrenched.

Unfortunately though, a lot of things done by lawyers and their clients in disputes and disagreements today do exactly that sort of entrenching:

• They start out ultra-aggressively – claim forms sent to land at exactly 5 pm on a Friday evening, purposely designed to ruin the other side’s weekend. Big law firm name deliberately used to ‘scare’ the other side and show them we mean business. Threats to bring hell, fire and damnation down on top of the other business if they don’t immediately do what they demand.

  Are we seriously expecting someone to react positively to that and just do what’s demanded? Because my immediate reaction to immediate aggression is to fight right back again.

• They react in an overblown, belittling fashion – arguments and points must be met head on with a complete dismissal. Nothing can be admitted or accepted. The other party must be made out to be a complete idiot. For example, on receiving a claim from Prince Harry, Associated Newspapers didn’t just say they disagreed with him. They described his claims as “preposterous”. Not unfounded, not incorrect: “preposterous”. 

  I don’t know Prince Harry but I would imagine that that level of over-reaction just made him dig in and become ever more determined to ‘stick it to the Mail’.

• They carpet bomb as many arguments as possible when setting out their position – if an interpretation can be reached, they’ll reach it, not matter how much they have to squint or contort themselves.  The more arguments we send out, the smarter we’ll look and the more we’ll tie them up in knots. And the sheer weight of incoming missiles sent out are bound to make the other side cower and raise the white flag.

  Does the law seem like a numbers game to you, rather than a supposed game of expertise and precision? My immediate reaction to that: me thinks they doth protest too much. And you clearly can’t be that confident in your case, because you don’t seem to be capable of working out which argument is most effective.

On top that, far too many get seduced by the assumption that winning a court case will definitively change someone’s mind. I suppose it is possible that, on occasion, a loser may accept defeat, admit their thinking was wrong. But that doesn’t seem very likely to mean, given the combative nature of a dispute.

Instead, all too often the response to a court defeat is to appeal: “they were lucky”, “the judge totally messed that up”, or “that just can’t be right?”. Or even worse, “I’ll get them back, no matter what I do”.

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When you step back and think about it, those reactions to such aggressive tactics are perfectly understandable or predictable. Yet we just don't think about litigation in terms of psychological reactions.

Instead, we're told by lawyers not to think of those reactions. Instead we’re told to focus on “the arguments”. To focus on our chances of success. To focus on “the law”, in other words.

So step 1 in putting the relationships first in your disagreements is to remember that disputes are psychological. And as they’re psychological, the right question to ask yourself when it comes to every step or move in any dispute is this simple one:

“How is this going to make the other side think & feel, and is that really helpful?”

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Right, I’m off to see how much it costs to buy a second hand copy of “Psyche”. Just for legal research purposes, of course…

Till next week

Andrew