Litigation and settlement strategy: handling a dispute: working collaboratively
You should always aim to work in a collaborative, non-confrontational way when handling a dispute.
Working collaboratively means that:
- you should try to avoid a dispute by explaining the risks and how documents and information can address the risk
- if you recognise that you have a different view from the customer, you should tell the person so that you are both aware that there is a dispute and that it needs to be resolved
- you should act to resolve the issue and explain how you intend to resolve it.
Collaborative working might include, for example,
- discussing transactions or issues on a real time basis (pre-transaction or pre-return)
- holding an open dialogue that sets out the specific task risk identified and avoids unnecessarily wide-ranging opening enquiries
- early discussion of the disputed issue to understand what relevant facts are needed and which law will apply to those facts
agreeing a timetable with milestones and target dates for
- establishing facts
- providing information or documentation
- reviewing documentation
- reaching decisions
- testing conclusions
- providing updates on progress
- clarifying understanding of relevant facts
- agreeing the form in which information is to be provided
- discussing, sharing and testing technical arguments to assess relevant strengths and weaknesses in analysis
- agreeing the key questions to be answered in order to resolve the dispute
- exploring possible alternative interpretations of the facts or law
- working with the person or their agent to agree revised figures or required action.
Even where a dispute seems to have reached an impasse, it may still be possible for you to work with the person or their agent. For example, if a matter is heading towards litigation you can still
- agree the key question or questions that need to be determined by the tribunal or courts
- seek to narrow down the points in dispute
- jointly draft an agreed statement of facts
- consider alternative dispute resolution (ADR) involving a third party facilitator, see CH280400
- be open to discussing the relevance or impact of any new facts that come to light or alternative technical arguments that are identified
- agree a timetable for the preparatory steps to litigation
- arrange periodic meetings to discuss the case and give or receive updates on progress.
A collaborative approach may not be possible or appropriate in all cases, see CH40780.