Brent Haywood: Why disagreeing agreeably can be a better solution than going to court
Brent Haywood, partner in Lindsays’ dispute resolution and litigation team, explains why a little humility goes a long way for the best litigators.
I am what is optimistically called a dispute resolution lawyer. It’s a nice way of saying that I am a litigator. Put simply, I represent people and organisations who are in conflict. Much of that work revolves around our rights — and we live in a world where people have never been more aware of what they are, or what they believe them to be.
In my field, there is a growth of cases where rights clash. And the circumstances where we may be called in to advise can be broad — from commercial conflicts, to religious groups excluded from public buildings to those who challenge entertainment licensing restrictions.
So, when your rights bump into my rights, what do we do?
The Equality Act of 2010 and the European Convention on Human Rights have become the totems to which we turn. The trouble is, these laws can be hard to understand — and apply. We find phrases such as “protected characteristics” and “human rights” being tossed into the battle, sometimes with little understanding as to what they mean.
When our interests or rights collide, what can I say and do? What can others say to me? When might the law punish me? And when might the law protect me?
Our lawmakers try to address these questions by making more law. The reality is that I find that does not always help. Often well-intended legislation merely creates more complexity, sometimes leaving the public perplexed and sceptical. The Hate Crime and Public Order (Scotland) Act was passed in March 2021. Due to its complexity, it has still not been brought into effect despite the passing of its second anniversary. It is becalmed, and some question whether it will ever be implemented.
From a legal perspective, considering the practical effect of this law is interesting.
Take the early stages of the contest to choose a new leader of the SNP to replace Nicola Sturgeon as Scotland’s First Minister.
There has been a great deal of discussion about how social media has fuelled a cocktail of conflict, some of which has been reported in our mainstream media. Ironically, it seems to me that some of the vitriol I have read could fit squarely within the definition of “hate crime” under the Act. I am sure that our police, prosecutors and judges would have been busy figuring this out had the law been operational.
My point is that it feels as though we are tangled in a web of Delphic law that tells us what our rights are. Yet, when it comes to discussing them — we end up shouting at each other like fans at opposite ends of a sports stadium. The reality is that this sometimes does not get us very far in reaching a resolution.
If legislation or courts are not the answer, then what is?
Here is my suggestion: Act with a measure of grace. The ablest litigators know how to talk to each other, even when conflict is hot. They will try to solve their clients’ disputes without leaving it to the judge.
When rights clash, shouting loudly usually achieves little. Rather, perhaps we can turn to a very effective tool which is much underrated. Humility.
Humility was seen as a weakness by the ancient Greeks and Romans. Strangely, it is a word often used by politicians upon taking office. I think it is usually misapplied. A humble person can still hold strong moral, political or commercial convictions without being weak. You might have a strong position in your dispute, but it just might be that a little humility will let you unlock it.
Australian writer John Dickson suggests that “humility applied to convictions does not mean believing things any less — it means treating those who hold contrary beliefs with respect and friendship”.
Humility can allow those who profoundly disagree to co-exist and find solutions.
Mediators and the ablest litigators all know the secret power of humility. When deployed, careful people can still disagree — but disagree agreeably.