HOME NEWS & VIEWS MEETINGS COMMITTEE LAW REPORTS CONTACT LONDON INSTITUTE
Articles
Disputes - conformists and non-conformists (Contemplating what may be an obvious factor)
Francis Miller
Would it be wrong to say that the world's population can be divided into conformists and non-conformists? I am asking this question because there seems to be some people who just naturally want to conform and others who do not. Moreover, I am asking it because it seems to be relevant to disputes.
This broad classification is likely to be confused by some people who are not really by nature conformist, but they appear to conform because they are disinclined to be treated as non-conformist. Likewise, there may be some who appear to be non-conformist, but they are really conformist who are simply balking at their own nature; perhaps because they cannot shine out with the ability often demanded from the conformist. However, leaving aside such nebulous areas from the broad concept, I am inclined to wonder about whether or not such a broad classification really does exits. Furthermore, if it does exists, can an understanding of that factor help to clarify some of the issues faced in dispute resolution; and in particular the various procedures for dispute resolution.
Accepting, for my present purpose, that the broad classification does exist, I am inclined to express the view that the classification does not have anything to do with ability. Rather, it is only a thing of nature. Indeed, it is quite obvious that people from all ranges of ability exist in both classifications. For example, it seems to me that such people as practising surgeons, dentists, airline pilots, etc., must be conformists by nature otherwise they would be very unhappy in their work. These people cannot go to work and do their own thing, unless their own thing is the desire to conform, namely: because these people must follow set procedures; and, of course, any deviations from those procedures would, in general, be failures. Whereas, on the other hand, non-conformists may be people who are at the cutting-edge of innovation, which cutting edge - even when blunted by failure - is often an acceptable step towards achievement. Obvious categories of such people would include artists, inventors, those involved in intellectual property rights, etc.
If we now consider the nature of disputes, we can say that although disputes are commonplace in many types of business and in particular categories of life, each actual dispute is, generally speaking, unanticipated. This is borne out by the many standard forms of contract. These contract documents are an attempt at anticipating all the issues which may arise during the activities to be undertaken under the contract. Each activity is provided for in so far as it can be foreseen and, save for fabricated disputes and/or simple deficiencies in knowledge, any actual dispute is thus presumably unanticipated. Accordingly, although one can make broad classifications, it is the case that when a dispute arises it brings together a range of factors which are, in the collective sense, unique in the specific matters in dispute and also possibly in the context of the people involved in the dispute. Thus, only once a dispute has arisen, one can be more clear about the issues in contention and the people involved.
In the context of this article, I am primarily concerned with the people involved and whether or not the classification of those people into conformists and non-conformist has any relevance. So, let us consider the parties, their representatives and the person who is to decide any points in dispute. If we can accept the classification of conformists and non-conformists, then we can also accept that there is likely to be an understandable tension for these people when dealing with the dispute, which tension goes beyond the matters in dispute. One example, is the tension which could arise out of the difference between those people who are, by nature, willing to comply with the laid down procedures and those who are not.
Let us first consider litigation. It seems to me that the judge, like the practising surgeons, dentists, airline pilots, etc. is likely to be a conformist by nature because, generally speaking, if the judge were a non-conformist, then either the judge would be uncomfortable with the work or the State would be uncomfortable with the judge. As for the representatives, again, it seems to me that representatives are likely by nature to be conformists. Where representatives are non-conformists there is bound to be a tension between the judge and the representatives and, of course, the representatives would not be on the right side of that stress. As an aside to the process of detecting whether or not representatives are conformists, it would not, in my opinion, be a good counter-argument, if the argument simply highlighted the fact that representatives seem to be always arguing about procedure as though they were forever non-conformists. Such an apparent non-conformists approach by representatives is simply a misreading of the situation because all the representatives' arguments are based on the concept that they want to comply with the proper procedure, but the others involved in the matter are mistaken about what the true procedure is in the context of the matter under review. Thus, the representatives are simply arguing the case for conformity with the existing rules. If a representative claimed that the reverse was true, namely: arguing the case for non-conformity with the rules, he or she would, generally speaking, be on a loser. As for the parties, they would, of course, be whatever they are, namely: either conformists or non-conformists by nature. However, those who are by nature conformists will be more likely to blend in much better with their representatives and the judge than will the non-conformists.
I wonder if it would be wrong to speculate that litigation is more a difficult forum for dispute resolution owing to people in dispute being by nature either conformists or non-conformists than it is a difficult forum owing to the technical nature of many disputes.
However, it seems to be the case that some of the ancient Greeks held the view that once a sensible person knows the true path to follow, that person becomes a conformist. Thus, a non-conformist is still simply searching for the right path. Perhaps there is an element of truth in that, perhaps litigation uses the right path for procedure. Nevertheless, as far as the parties are concerned, litigation is kick-started based on a set procedure and the parties are on that set procedural route, whether or not they comprehend its significance, as they move towards a decision. Whether or not the parties feel comfortable with that is irrelevant to the litigation process, but I do not believe that it is irrelevant to the inherent nature, conformist or non-conformists, of the parties. Nor do I believe that it is irrelevant to the smooth running of the business of settling disputes.
Of course, arbitration can allow for any mix of conformists and non-conformists in any of the people involved: parties, representatives or arbitrator, and still work well as a process for settling disputes. Providing the parties agree the terms for an arbitration and providing an arbitrator accepts the appointment, the parties can agree the middle ground of procedure to suit themselves and it is only necessary for the arbitrator to make decisions where a middle ground cannot be agreed upon. Further, even that decision does not have to comply with anything, save for the terms of the agreement between the parties. Furthermore, the procedure can be modified as the dispute unfolds; with greater knowledge providing a better opportunity to progressively tailor the procedure to suit everyone involved.
There is no doubt that one reason for the continued existence of arbitration over a few thousand years as a procedure for the resolution of disputes has been its inherent flexibility to accommodate any mix of parties, representatives and decision makers.
The same basic factors do, of course, apply to all the other non-binding procedures for dispute resolution, but it is that non-binding element which separates them all from arbitration. And, of course, it is that inherent flexibility on matters of procedure that creates one of the main gulfs between arbitration and litigation. Upon thinking about these things, I am inclined to believe that those of us who are involved in dispute resolution are sometimes too involved in the process of developing everyone's understanding of dispute resolution procedures, whereas, perhaps we should spend more time in trying to understand the parties.
Editor's note: I am once again grateful to Francis for his incisive thoughts on the human factors that affect disputes and their resolution. I suspect that many of the more radical, but successful, members of the bar would dispute Francis' suggestion that they are, by nature, conformists. Any comments or thoughts from readers on this interesting article will be gratefully received.