Business battleships: what you should know before declaring war

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As cliché as it might be, Sun Tzu had a lot of helpful stuff to say about ‘war’ that we can apply to our small businesses.

In his work ‘The Art of War’, Tzu wrote – The greatest victory is that which requires no battle.

It made me think about what that means in the modern world. What does it mean when we are thinking about victories and wins in business? Every small business owner, at some point, will hit a hurdle and end up with a barney with someone – a customer, a supplier, an employee. It’s part of life in business. But how should you play it? Is it really possible to sort out a dispute without a fight?

It’s no secret that in litigation, even a winner can come out feeling like they have lost – time, money, energy, privacy – the works (just think about what goes to the other side or the public in discovery, affidavit material, and then evidence in the witness box). So, the real win is getting a resolution before there needs to be a battle in the true sense.

This does go against what is often the approach for parties in a dispute. It is usually like a game of Battleship – each party starting the game with a strong position and a clear declaration of war. But what we see this doing is getting the parties invested in a war from day one. They are tied to a position from that moment. They have drawn their line in the sand, and there is no turning back.

This doesn’t bode well for a negotiated outcome that will avoid all of that time, money, energy and otherwise. You’ve got better things do to – like growing your business.

So – how can you stop the litigation horse from bolting?

Well, for starters, get good advice. Look for a lawyer that will be straight with you about your prospects, and the cost and effort and other things that you are going to have to deal with if you run litigation. Don’t bury your head in the sand and think that slamming the other side with a court document will have them surrendering and paying up. Know what you are going to have to invest and do to run your issue right to the very end.

Then – be strategic. Map out the possibilities. Imagine you are on ‘the other side’ for a day or two. How would you play it? What would it take for you to settle? What are you willing to give up to get the outcome you want? What are the levers for the other side? Is there a more creative way to get what you want? For example, if you are trying to recover a debt from another business that has no capital, is it really worth your while to pursue them in the courts? Maybe there is something more valuable than a court order that you can look for from them in a negotiated settlement.

Think about getting in a room with the other side – and early. Don’t wait for the war cry. Sit down, with your advisors, and talk. Even if you don’t settle, use the opportunity to uncover what’s at the heart of the other side’s opposition to you. It will help your case if you need to run it.

Don’t get caught in the ‘pokie machine trap’. This means that the more you tip into a dispute, the more likely you’ll be invested in it and determined to fight – regardless of the ultimate cost and outcome. Don’t spend time or money unless you are clear on the next steps and your appetite to keep going.

Sometimes, you’ve just got to have a fight to get the outcome you want and need. But, before you draw your weapons, it is wise to see if you can have the victory without the battle.

Laura Racky
Director and Lawyer - llgold - Laura is an experienced senior corporate legal counsel with commercial expertise. She gets excited about working alongside businesses and busting myths about stick-in- the-mud lawyers. She thinks that a really good lawyer can be a trusted advisor to a business, can be creative and strategic, and give guidance to help your business flourish and profit in the way every business owner dreams.

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