What is winning?

The Art of the Dispute.

I am a commercial litigator. As you would expect, I deal with disputes on a daily basis. However, my profession does not place me in a unique position – far from it. The reality is that each of us has disputes and arguments, of varying degrees of seriousness or triviality, every day.

What my job has given me is an up-close view of the nature of disputes, how and why parties argue and the strategies that they adopt to try and achieve their aims. The purpose of this series of articles is to share with you some observations which are likely to apply as much to your daily interactions outside the workplace as within it.

Enjoy reading the first instalment: What is winning?

What is winning? It seems a simple enough question, but take a moment to think about it and you begin to realise that there are degrees of winning – and losing. Absolute victories and pyrrhic victories can both be described as wins, but the outcomes are very different.

Most people argue because they want the other party to agree with them, or put differently, because they disagree with the position adopted by the other party. So, is winning simply a case of getting someone to agree with you? Let's add in a few factors and you will begin to see that it is not quite that simple.

Take the following example. Mr Smith supplies goods and services to Mr Jones in return for an agreed fee. The fee is not paid and when Mr Smith demands payment, Mr Jones asserts that the goods and services were not up to standard and that he is therefore not obliged to make payment.

Business man in meeting

Now put yourself in the shoes of Mr Smith. A dispute has arisen and you want to win, so what does that mean? The simple answer is to get paid what is owed.

But what if Mr Jones has been your biggest customer and you do not want to lose his future business? Mr Smith may therefore consider that winning means getting paid and retaining the working relationship. More difficult to achieve a 'win' that comprises both these aims.

Mr Jones is unwilling to compromise and makes clear that if Mr Smith pursues his claim for payment, Mr Jones will publicise the shortcomings, as he sees it, in the goods and services supplied by Mr Smith. Mr Smith does not want to suffer reputational damage, as he has spent considerable time, effort and resources in building a brand. So Mr Smith adds to his definition of winning, 'avoid reputational damage and losing other customers as a result'.

Daniel Gleek
'Will 'winning' it make things better or worse?'
Daniel Gleek

Although this scenario is a simple example, it is possible for Mr Smith to add an almost unlimited number of addendums to his definition of winning, to include other factors such as recovering the payment without spending more in the process than the sum in dispute; settling the dispute within a particular timeframe; limiting the amount of management time spent on the dispute; avoiding stress and disruption and so on.

This same approach can be applied to disputes outside the commercial arena, such as in the home. 'Do I want to have this argument?' and, 'Will 'winning' it make things better or worse?' - are questions we rarely ask ourselves - but perhaps we should.

Tips on winning a dispute:

Set objectives. Define what is important and give some thought to how important and at what cost. Do not get distracted by side issues. If you are not moving toward your objectives then the likelihood is that you will spend time and money moving away from them. To settle on the right strategy for achieving your 'win', you need to understand what it is you are aiming to achieve.

If you have any questions on this article, or you need some legal assistance with a dispute, please contact Daniel Gleek for a conversation on how we can help. 


Finding a receptive earopens in new window
We often act impetuously, driven by the timing of our own agendas. Occasionally this will result in a good outcome – often it will not.
Validating your opponent's positionopens in new window
You have spent some time considering how you have been wronged. You have given careful thought to your objectives. You have rehearsed your speech, refined the content of your letter and are ready to set out, with precision, what has happened, why you are right and what you require to settle the dispute.