Two recent FSB reports suggest most members have been caught up in a commercial dispute, with payment issues often the cause. While firms can take steps to prevent these, more needs to be done to help those who are affected. Georgina Fuller reports
At some point, almost every business owner will have to deal with a commercial wrangle of some sort. Whether it’s an outstanding invoice, an item that is not fit for purpose, a dispute with a competitor or an intellectual property issue, conflicts are an inevitable part of running a small firm.
In fact, according to a report by FSB on commercial disputes published in December, 70 per cent of members experienced at least one incident between 2010 and 2015, with the average sum under dispute standing at more than £18,000, and each dispute costing a further £17,000. Nationally, around £12.4 billion a year is tied up in commercial disputes, found the report, Tied Up: Unravelling the Dispute Resolution Process for Small Firms.
Measures to tackle this problem have focused on encouraging more use of alternative dispute resolution (ADR). On the consumer side, the EU now requires the Government to ensure consumers can propose ADR to resolve a dispute with a supplier of goods or services.
FSB believes ADR has a role to play in encouraging the quick and low-cost resolution of disputes, but that its use should not be compulsory – a view reflected in the way the Government has implemented the ADR rules.
However, the FSB report makes it clear that such low-cost dispute resolution methods will work only in the context of the backstop provided by the courts. It found just 8 per cent of disputes were resolved through ADR, with a further 43 per cent being settled informally or semi-formally, and 19 per cent resolved only through the courts.
“Successive governments have underinvested in the civil justice system in England and Wales, and the result has been a deterioration in the quality of the service it provides to small businesses,” the report says. “Recent announcements from the Ministry of Justice about plans to invest in, and modernise, the civil courts are a welcome step forward towards reversing the decline of the civil justice system which impacts so many small businesses.”
The civil judiciary in England and Wales has also mooted the idea of an online, lawyer-less court to resolve claims of up to £25,000. If the proposals get the go-ahead, this online dispute resolution system could be put in place by 2020.
But while this system could benefit small firms, there are potential pitfalls, says Martin McTague, FSB Policy Director. “It needs to be developed flexibly so problems with the technology, procedures and user experience can be ironed out quickly. This can be achieved only in close collaboration with users such as small businesses.”
There are other challenges, which the Ministry of Justice and the HM Courts and Tribunals Service need to resolve before the online court goes live. They include how it would interact with the current legal system, and security, including the potential for the new system to be hacked and how it would ascertain users’ authenticity.
To help small firms caught up in disputes, the FSB report suggests a three-tier dispute resolution system. “The first tier should be focused on encouraging and equipping small businesses to prevent disputes arising or, if that is not possible, resolving them as early and as informally as possible,” it says. “When a dispute cannot be prevented or resolved informally, the second tier should provide businesses access to a vibrant, diverse and trusted alternative resolution system. Finally, the first two tiers must be underpinned by the third tier – an effective civil justice system providing cheap, fair and just outcomes.”
Meanwhile, another FSB report into late payments has found that 30 per cent of payments are typically overdue, with only 12 per cent of small businesses customers always paying on time. In fact, about one in 10 small businesses say that 80 per cent or more of payments are typically late, with the average payment delay being more than a month. The majority (84 per cent) of late payments are more than two weeks late, with an average delay of about six weeks and an average value of £6,142, according to the report, Time to Act: the Economic Impact of Poor Payment Practice.
Late or non-payment is a big cause of commercial disputes, accounting for around three-quarters (72 per cent) of incidents. It reduces profits and affects the ability to invest, says the FSB report.
To pre-empt payment problems, it pays to do due diligence first, advises Mr McTague. Many problems can be avoided by effective due diligence,” he says. “This might be researching new customers, including their credit history, or investing time in understanding customer needs to avoid any future misunderstanding.”
Contractual issues that don’t involve payment account for around one-quarter (28 per cent) of commercial disputes, according to the FSB report. These issues include products that are not as expected or cannot perform as required, late delivery, and misrepresentation of the good or service involved.
To minimise the risk of a dispute occurring, business owners should keep a record of their actions, says Neil Sharpley, Accredited Commercial Mediator at Marker Law and an FSB member. “In addition to clarifying what you are selling or performing and the terms and price, you should keep a record of supply and performance actions taken, so you can prove them if required.”
Often the best course of action for small firms is to avoid disputes in the first place, although there are instances where poor practice by larger customers or breaches of contract terms make this impossible. The best way to prevent disputes is having good commercial relationship management practices and procedures, backed up by strategies for resolving disputes swiftly where they cannot be headed off.
When it comes to customer complaints, it’s important to listen to what the customer is saying and not sweep anything under the carpet. “Don’t ignore complaints and think they’ll disappear,” says Rianda Markram, Professional Support Lawyer at FSB Legal. “If disputes cannot be resolved through informal discussions, consider mediation through a third party. You need to determine the cause of their unhappiness and, once the issues have been identified, try to reach an agreement to resolve the dispute.”
The adage about the customer being king can help to prevent disputes, says Peter Stonely, Lead Officer for Civil Law at the Chartered Trading Standard Institute (CTSI). “Most small businesses will know the importance of keeping and looking after their customers, so good customer care is vital. Keep the customer informed, tell them if there are delays, and don’t hide from giving bad news.”
It’s important to train staff on the legal ins and outs so they understand their legal responsibilities, he adds. “This can bring confidence that they are ‘doing it right’ and strengthen the quality of their interactions with customers.”
You could also include an ADR clause in your contract with customers, says Olivia Staines, Interim Head of Marketing and Communications at the Chartered Institute of Arbitrators (CIArb). “By including such a clause, you can ensure that if a dispute does arise, you have a forum in which to resolve it. Look ahead and plan for potential problems down the line, so you can avoid the court system where possible.”
CIArb itself offers a business arbitration scheme (BAS) to small firms, she adds, providing cost-effective resolution of disputes with low-to-medium value (£5,000-£100,000).
Ultimately, says Ms Markram, your reputation as a company is crucial, so it’s vital to tackle potential disputes swiftly and smoothly. “Dealing with disputes effectively can save your business not only time and money, but also valuable client relationships.”
Top tips for handling disputes efficiently
- Make sure you have clear policies and procedures in place for customers and suppliers. These should include service level agreements and a policy outlining how to deal with any complaints
- Listen to your customers and make sure you respond to their complaint quickly and efficiently
- Ensure that all your staff are trained on how to manage complaints and problems, and that they can openly discuss any issues with their manager
- Don’t ignore complaints or make the mistake of thinking they might disappear. If disputes cannot be resolved through informal discussions, consider using mediation through a third party
- Document all conversations and correspondence in case the dispute does go to court
- Remember that your reputation is everything, and that you never get a second chance to make a good impression
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Georgina Fuller is a freelance business journalist