Small Interactions, Big Impacts: The Art of Compromise

Not all businesses survived COVID-19 in Kenya. Some shut temporarily for prolonged periods of time these past 2 years, as the country went into lockdown after lockdown, and people were encouraged to stay at home. Some downsized, and some sadly will not reopen. Notably, not all businesses have been affected by COVID-19 equally- which sector the business is in matters very much. We now know that the service industry including tourism and education were amongst the most severely impacted. And we also know that the ripple effects affected every connected trade, both wholesale and retail, from goods to finance to energy, as well as supply chains beyond these industries. It will take a long time for surviving small and medium sized enterprises in Kenya to fully recover.

The country is only now emerging from the shadow of the COVID-19 pandemic. If there’s a lesson it has taught all of us, it is that to survive, we need to maintain good relations at all times to work together. We have learnt that when parties act responsibly and fairly in relation to disruption of their commercial and personal dealings, when parties give each other breathing space and do not take advantage of black letter law to force an unfair position, everybody wins. Beyond contractual obligations, it means that when both parties bridge the gap, communicate and find a balance, they can agree to an effective solution. In the long run, this balance will lead to a stronger relationship and positive growth. If you fail to compromise, you fail to build these relationships. And if you fail to build these relationships, you compromise yourself and your business.

Take a middle class tenant whose job was impacted by COVID-19. We know of many Landlords who generously offered breathing space for their tenants to make reduced or delayed rental payments. But not all did, and the Rent Restriction Tribunal came in handy during several of these disputes. It became evident however that the relationship one had forged with their Landlord, before these emergencies, mattered very much, when requesting for grace. One cannot force grace. The instant dispute? Now of course there’s always two sides to every story, and then the truth. The truth is that one party would protest clamorously for every broken utility, whether due to genuine wear and tear or otherwise, and the other Party was bothered by the tone of these complaints. The Landlord admitted that he found it difficult to deal with irksome tenants, and when rent went unpaid for a month due to financial difficulty, he seized that opportunity to share a termination notice, and look for a more peaceful tenant. To be clear, he had no issue with repairing leaking faucets and such, however they were broken, nor did he have an issue extending grace in the face of financial constraints, he just had an issue with the manner in which these complaints were communicated to him previously, and the volume of voice used in his ear. Normally, I would file this for future amusement and remind this client of their legal and ethical obligations, but having also been unfortunate to have heard this tenant’s complaints down my ear one day, I knew that a compromise between the 2 parties was not guaranteed.

A compromise in legal terms, means an agreement between two or more persons, who, to avoid a lawsuit, amicably settle their differences, on such terms as they can agree upon. In layman’s language, it means to leave your ego at the door, activate your discernment and find out what you’re willing to let go to gain, or mitigate your loss, and prevent litigation. In Kenya, it means understanding the import of Article 159 of the Constitution and its endorsement in using alternative dispute resolution mechanisms to conclude a dispute including negotiation, enquiry, mediation, conciliation, expert determination, arbitration, and traditional dispute resolution mechanisms, provided the latter are not inconsistent with the law and are not repugnant to justice and morality. It means understanding that any time you have a dispute, the first avenue should not necessarily be adversarial, and most certainly, not litigation.

Compromise takes various forms. It is not just extending credit to a loyal business undergoing financial distress, to avoid bankruptcy. Or to refrain from evicting loyal tenants who are undergoing financial difficulty. It is also to be reasonable when you choose to call your Landlord on a Sunday and expect his plumber to be availed immediately. We need to understand that beyond the law, the foundation of compromise is built during ordinary times during very ordinary interactions with each other, to be triggered during these emergencies. You must be willing to act responsibly and fairly at all times, and to compromise on matters of no great import, to then request for compromise when your livelihood and home is on the line. That is the compromise.

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#Article159 # compromise # legal compromise # alternative dispute resolution #businessinAfrica #leadership #SMEs # Kenya

Not all businesses survived COVID-19 in Kenya. Some shut temporarily for prolonged periods of time these past 2 years, as the country went into lockdown after lockdown, and people were encouraged to stay at home. Some downsized, and some sadly will not reopen. Notably, not all businesses have been affected by COVID-19 equally- which sector…