Please note that this pertains to South African Legislation, the King Requirements and Best Practice.
I doubt that any of us enter into a contract with either a client or supplier (or even a partnership or joint venture) with the intention of the whole thing going belly up or us getting into a fight that seems to have to no way to resolve the issue or move forward in any way.
Here’s the thing . . . it does happen and when it happens there must be some way to break the deadlock and find resolution.
Taking the issue to court is both expensive and hugely time consuming as it can take years to find an acceptable redress and often the outcome can be both variable and unpredictable, which can also have a negative impact on the Company’s reputation.
As usual it is a good idea to be proactive and have an ADR (Alternative Dispute Resolution) in place. It allows the Boards and Directors to find more creative ways to manage dispute resolutions and it is also one of the ways that good governance can be maintained. ADR is recommended and forms part of the Director’s fiduciary duties.
Here are some of the questions that Directors should be asking:-
1. “Is our organization involved in significant disputes.” If the answer is yes, then clearly there is a problem that needs some attention.
2. “What do these disputes teach us about our customers/suppliers and our own approach to business?”
3. “Has negotiation failed in these disputes?”
4. “Can we consider an ADR process? E.g. mediation, conciliation etc.?”
5. “Has the organization considered adopting a dispute response plan?” If the answer to this one is no, then clearly something needs to be put into place.
The next step of course, if the decision is to go ahead with an ADR plan, is to brainstorm and list the suggested alternatives.
Clearly a lot more for the Directors to think about, don’t you agree?
Next time we’ll tackle the final issue in the series and that is the Remuneration of Directors and Senior Executives.