The Secrets To Avoiding And, If Necessary, Winning Litigation–Part 1
The complaint is now ubiquitous—the threat of litigation supposedly stops businesses from doing otherwise valuable things. Whether that statement is objectively true or not is not the subject of this post. This post (and part 2, which is to come) will focus on a few things that you, as a businessperson, can do right now to reduce your litigation risk, thus freeing up precious resources you can use to do things that will benefit your business. It will also describe a few things that you can do to put yourself in the best possible position to win any litigation in which you might find yourself.
Secret No. 1
Secret number one is not really a secret. I’m reminded of Robert Fulghum’s book, All I Really Need to Know I Learned in Kindergarten. Secret number one is a bit of a twist on what Mr. Fulghum says he learned in kindergarten: play fair.
Now, secret number one is not literally “play fair.” In order to avoid litigation, you have to do more than just play fair. You have to play in such a way as you are accepted by others as one who plays fair. In other words, if people believe you are a fair person, they are much more likely to accept your decision than if they perceive you as treating them unfairly. I spent a fair amount of years early in my career representing employees who had been fired. They wanted to sue their employer and it was my job to find the legal hook upon which we could build a case. That usually meant race, sex, or age discrimination. Now, the thing to realize is this. Probably less than half of those people were upset that they were “discriminated against” because of their race, sex, or age. They were upset, mainly, because they felt that they had been treated unfairly. Now, sometimes I could do something about that unfairness and sometimes I could not. But the moral of the story is this: those people probably would have never sought an attorney if they had felt that they had been treated fairly. And if they didn’t seek an attorney, the claims would not have been brought.
How does this play out in real life? Well, one example might be customer service. If you have a deep and wide knowledge base regarding your customers, their likes, dislikes, etc., you will more than likely understand their biases and therefore understand how they might perceive certain actions. You can then have your customer service people fix issues in a way that is perceived as being fair.
More generally, understanding why someone is complaining and what you can do about it is extremely important in avoiding litigation. I would argue that the way in which you handle conflict and resolve issues is the number one factor in determining whether you will be sued. If you are perceived as the reasonable one making reasonable and fair offers of resolution, you reduce the chance that the other side will sue simply because the other side perceives fairness rather than unfairness.
Even in negotiations, it is important to understand others and project fairness. Let’s say you’re negotiating with someone who you know likes to have certain things in their sales contracts, or likes certain language written a certain way. If you have a deep, thorough understanding of why they want that language written in that way, you can get beyond their position (which is “I WANT THIS LANGUAGE WRITTEN THIS WAY”) and address their concern (“I AM CONCERNED ABOUT ANY INDEMNITY CLAUSES BECAUSE WE GOT BURNED A FEW YEARS AGO.”).
Now, that perception of being treated fairly or unfairly can be influenced. Many times, the perception is based on experiences and other biases (I use that word in the sense of “non-objectivity” rather than in some moral sense) that can and should be investigated and addressed. The voir dire process of selecting jurors, for example, is exactly this type of search for prejudice or bias. The person whose language you are rejecting might legitimately be wary of that particular point of negotiation. If you are able to get beyond the position, however, and address the concern, you can influence that person to perceive your actions as being fair and not an attempt to try to harm them.
In dealing with complaints, I think it is important that you have a clear and transparent process for addressing them. If no one knows who to contact or where to go if they have an issue, the frustration level rises, and they perceive they are being treated unfairly. It helps for people to know the process, and be able to use it.
That process must include someone with authority to make it right. I personally cannot stand it when a customer service representative doesn’t have the authority to make things right. It is frustrating when you have called the number designated as the “customer service” number, but you as the customer are not being provided any service, just regurgitation of company policy. You want to lower that frustration level and increase the perception of fairness. That can be done in several ways. First, you can authorize your customer service representatives to “make it right”, within parameters of course. Second, you can set up within your company a dedicated customer service department. Now you don’t have to do this. However, in larger companies, having an entire department whose specific charge is to do what it takes to lower customer frustration is good because that is what that group of people focuses on all day every day. Third, and this is important, you can set up a process whereby complaints are actually heard not just passed around from one person or department to another. When people feel like they are actually being listened to, they perceive that they are being treated fairly. If you aren’t listening to them, or you are just passing them back and forth between departments, the perception of unfairness rises. Moreover, sometimes people just want to get things off their chest. They want you to hear their complaint. They don’t necessarily want you to do anything about it. Be receptive to listening to complaints, and be prepared to have someone with authority to make it right if that is requested.
In fact, in this country, the perception of fairness almost always relates to the process and not the result. If people perceive that the process itself is fair, they are more than willing to accept a result that is objectively far worse for them than they would have accepted otherwise. I haven’t really investigated why that appears to be the case, but I think it has something to do with our focus on “due process” and process fairness in general, rather than a focus on substantive results-oriented fairness.
So, the process is as important as the result. When the process is perceived as fair, people accept the result much more easily than they would otherwise.
So, you have two things here: developing a process that is perceived as fair and implementing that process in a way that is perceived as fair. Now both of those things can be done by one person or one team, or you can have one team develop the process and one team implement it. Whatever works within your company’s culture.
Secret No. 2 is the subject of my next post.