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Simplifying SME dispute resolutions is dead right

02:00pm August 09 2017

Westpac Customer Advocate, Adrian Ahern, says litigation can be very unfamiliar territory for many small business customers. (Getty Images)

As someone who has practiced law for more than 30 years, and now in the newly created role of Customer Advocate for the Westpac Group, I know well the challenges of anyone, other than big business, being able to afford access to quality legal services.

This is particularly so due to the significant costs of litigating in a court, especially against the resources of a major company or bank. To be frank, a bank is an expert at litigating with vast experience and for many of our small business customers it will be very unfamiliar territory, in particular as to process, the risks involved and costs.

At Westpac, we are taking a different approach to make it easier for our retail and small business customers when things go wrong, a key part of my role as the bank’s independent Customer Advocate.

Just recently for a small business customer we considered how best to progress a dispute which was heading to a formal mediation. We workshopped what would be a fair and balanced resolution, proposed that to our customer and their lawyer and the matter quickly settled without going to the time and expense involved in what was to be an all-day mediation.

In The Sydney Morning Herald on August 1, 2017 Kate Carnell, the Australian Small Business and Family Enterprise Ombudsman, wrote a very timely piece on access to justice (“The missing link in banking stoushes is access to justice”).

Ms Carnell has expressed  concern for some time now that, other than by commencing proceedings in court, there is no alternative for small business owners to obtain access to justice when battling large organisations. She also suggested that for small business owners in these circumstances there is “a sense of hopelessness if the other party is a bank or big business”.

It has been said by many, and I expect we all agree, that it is fundamental in a Western democracy such as ours that justice should be the same for everyone, both in substance and availability, without regard to economic or social status.
 
Firstly, I agree with Ms Carnell that there are two sides to every story and that it is important that we give our customers the opportunity to clearly make their claim.

To facilitate this, in any dispute with a small business customer, Westpac will take steps to support our customer better articulating their issues to ensure they put their best foot forward when dealing with Westpac. As part of this, constructive and early conciliation meetings with the right people in the room (without lawyers if possible) can go a long way to achieving a quick and efficient resolution of a matter. A very important part of this is listening to our customers and allowing them time to raise all issues they wish to raise. In addition, of course, it has been clear through the cases I have worked on that if everyone involved is realistic and open and honest then a resolution can be achieved quickly and efficiently.

Secondly – and importantly – Westpac now has a very clear policy of not approaching discussions or mediations with customers with the purpose of seeking the best solution for Westpac. Rather, we look to resolve disputes in a way which is fair and balanced for all parties having regard to all of the circumstances.

If a customer feels this policy is not being adhered to by Westpac they should get in touch with me via the group’s website and I will get involved directly to ensure a fair and balanced solution is reached. Part of my role is to ensure the bank at all times takes a fair and balanced approach. The bank is bound by my decisions and my remuneration is fixed, ensuring my decision-making is not related to incentives.

Organisations like Ms Carnell’s ASBFEO, and small business and consumer rights support centres can provide useful guidance on how best to manage and progress resolving a dispute with large companies and banks.

But a note of caution that if a customer wishes to “lawyer-up”, then they should be careful to avoid using lawyers who don’t have experience in financial services or dealing with a large bank. After three decades as a lawyer, much of which was spent in the financial services sector, what’s become clear is that litigation – and the world in general – is getting increasingly complex and the right counsel can make all the difference.

Adrian Ahern is the Customer Advocate for the Westpac Group for individual and small business customers across all Westpac Group brands. He can be contacted at: customeradvocate@westpac.com.au

Adrian was appointed as the Westpac Group Customer Advocate in November 2016. His role is independent of Westpac Group’s business units and offers an avenue of review for personal and small business customers, which is separate to the bank’s standard internal review processes. Before joining Westpac, Adrian had been a lawyer for over 30 years most recently as a partner at international law firm, Norton Rose Fulbright, where he held various roles including Global Chairman.

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