Dispute Resolution – Kean Smith

16 January 202217 January 2022

New Court Reforms … Affecting You in 2022

During his speech at the Opening of the Legal Year on 12 January, 2022, the Chief Justice Sir Brian Moree, KT, QC shared details and plans of upcoming court reforms. One of those reforms that is likely to affect you as a litigants was raised in the following extract from his speech:

“A new system of court connected mediation will be introduced into the Family and
Commercial Divisions during the first quarter. I have circulated a draft of the
Practice Direction and Schedules to the key stakeholders and will be proceeding
with this project during the first quarter. I have no diffidence in stating that a
modern court system must have a mediation component as an alternative method
of resolving disputes to reduce the number of cases which proceed to trial.” (emphasis mine)

In my blog dated 3 November, 2020, I shared some of the the benefits of Mediation with you. If you are a litigant or a potential litigant then you should take the time and learn a bit about Mediations. In my view they are not complicated and can be very useful for litigants who are open to exploring settlements.

Please note that this change in the Family and Commercial Division is expected to be implemented during the first quarter of this year, 2022.

So start informing yourself about this upcoming change and ask questions.

Please feel free to direct any questions or comments to me, Kean Smith at kean@smithkas.com

7 October 20217 October 2021

Small Businesses – settling business disputes quickly

In my post dated 3 November, 2020 titled “Operating a Small Enterprise? – do not let this destroy your operations” I wrote that “[a]s a small enterprise operator you should take steps to avoid settling conflicts in court, avoid litigation. While litigation is a legitimate means of resolving conflicts it has some disadvantages that are not suitable for small enterprises. You are probably fully aware that litigation can be costly and time consuming. If you are operating a small enterprise to create additional sources of income then it is likely that you do not have a budget for litigation nor do you have time to dedicate to attending court. Litigation should be avoided and you should employ alternate forms of dispute resolution. I am referring particularly to Arbitration, Mediation and Negotiation.” – (Source: Smith, K. A. (2020, November 3). Kean Smith. Kean Smith. https://www.smithkas.com/?p=439)

In this post, I wish to take a deeper dive and focus on small businesses using arbitration to resolve their contractual disputes instead of litigation in national courts. For the purpose of this article, let us agree that a small business has 50 or less employees (generally the same number of employees used in the UK and the USA). This category will include business owners from various sectors of the economy including Construction, Professional, Retail, and Transport.

As part of managing your commercial risk you should consider using arbitration. This can be done in a way to avoid costly and time consuming hearings. This will definitely decrease your cost and allow you to resume your regular business more quickly than waiting years for a trial date in the national courts.

I have heard stories of multiple contractors operating small construction companies complain about their final stage payment worth tens of thousands of dollars being withheld because of a dispute which is being litigated. Issues like this can be resolve faster through arbitration rather than commencing litigation through the national courts.

The most effective way to have access to this arbitration option is to include it as a term of the contract. So in short, seek advice about including an arbitration clause in your contracts. I believe this will go a long way in mitigating the risk of protracted and costly disputes.

Please feel free to direct any questions or comments to Kean Smith at kean@smithkas.com or Kean’s Linkedin profile

20 March 202121 March 2021

Stop spending good money on this …

This short blog is for the benefit of any of you who may encounter conflict or disagreements in your personal or business lives which cannot be settled by negotiation. If you cannot sever ties with the other party and the relationship must continue in some way then this is for you.

If you have a conflict with another party but the relationship must continue then it is my view and opinion that you should not litigate your issue as a means of trying to reach a solution. Doing so will cost you money, time and also worsen the relationship. An example of this is the ancillary matters of a divorce where children, specially minors, are involved.

One of the disadvantages of litigating in national courts is the expense of instructing Counsel and the risk of losing and/or not being able to recoup legal costs.

I recommend Mediation as a cost-effective alternative to Litigation. Mediation is a form of alternative dispute resolution where a third party [a mediator] is appointed by agreement of the parties involved in the dispute to help them come to a mutually acceptable agreement. (Chartered Institute of Arbitration)

This process is less expensive than litigation because only the parties with settlement authority are directly involved and the parties must agree to the mediator and the process. There is nothing in this process that is forced. Mediation is an ideal process for parties who are looking for a solution and are willing to compromise on some terms to reach a settlement. It also gives the parties an opportunity to personally present their side of the story if they wish.

Mediation is a viable option to parties who must retain an ongoing relationship, has some room to compromise and want to avoid protracted and costly proceedings.

Feel free to direct any questions or comments to Kean Smith at kean@smithkas.com

15 November 202015 November 2020

Resolving Financial Services Complaints

You are probably fully aware that Non-Profit Organisations need access to people, resources and institutions to operate and deliver services to their clients. One critical service needed is financial services. In this post I will share a method which can assist you with resolving time consuming complaints and saving on legal fees.

Just like Governments and Businesses, Civil Society Organisations utilise financial services everyday. Such financial services include Banking, Insurance, and Real Estate. From time to time you may experience poor service which results in loss to your organisation. In order to address these issues you must know which body regulates the financial services provider. If you do not know which institution regulates them then just ask them. Banking, Insurance, Investments and Real Estate services should be regulated in all developed economies. For example, Banking in The Bahamas is regulated by The Central Bank of The Bahamas, Insurance in Canada is regulated by federal and/or provincial regulators. In Ontario, Canada insurance is regulated by Financial Services Regulatory Authority of Ontario. Investments in the United State of America is regulated by the US Securities Exchange and Commission, and the National Trading Standards Estate Agency Team regulates estate agency work in the United Kingdom and letting agency work in England.

So if you have an issue for example at an insurance company then you should follow the following steps:

Written complaint – if a verbal complaint does not resolve your issue with the Customer Service Officer then submit a written complaint to the branch manager of the financial services institution. Of course you should include as much relevant detail as possible in your letter e.g. account name and number, date of the poor service and the impact on your organisation or business. If possible then include a copy of the receipt or transaction. If you do not receive a reply after five working days then send a follow-up letter. If you do not receive a reply within three more working days then take the next step.
Complain to Regulator – contact the relevant regulator and submit a written complaint following the complaint process of the regulator. Regulators have different complaint processes which are normally set out on their websites. Follow the steps as set out. If no timeframe is given for a reply then follow the five plus three working day rule in the first step above. If you receive no reply from the regulator then take the next step.
Targeted follow-up with Regulator – call the regulator and follow-up with the Manager responsible for complaints (if you are given an email to contact the Manager then use email instead of a phone call but maintain the same timeframe). When doing so ensure that you have a copy of your complaint letter and follow-up along with the dates you submitted them or make reference to them if asked to send an email to the Manager. If you are not able to reach the Manager on your first call then call again three days later. If you are not able to reach the Manager during your follow-up then take the next step (make a note of the days you called for or tried to reach the Manager) .
Targeted follow-up with Executive Management – call the Regulator and ask for the person who answers directly to the Board of Directors for the day to day operations of the regulator. This maybe a Governor, Superintendent or Executive Director. Once you reach that office indicate that you need the Governor’s assistance with reaching the Manager and share which steps you have already taken to reach the Manager. Please mention the complaint, and the follow-ups (written and verbal) already made.

Following these four steps can be very effective. I have worked seven years with three financial services regulators in two countries. From my experiences taking these steps always result in your complaint being address. To help yourself you should make a written complaint and follow-ups if necessary. Naturally you should retain copies of all letters of complaint in a form that is easily retrievable and shared. If you are able to follow these steps and the recommendations then you will assist the financial service provider and/or the regulator with addressing your compliant as promptly as possible.

All the best and do well.

Please feel free to direct any questions or comments to Kean Smith at kean@smithkas.com