another publication by IMAGE asia

Promoting non-exploitation & wellbeing through law

  Bangkok / Phuket Boat Lagoon

Wellbeing & law
There is a lot of information being disseminated in the public domain regarding the benefits of improving mental health and wellbeing environments; whilst some is being peddled, a lot of the information and training is highly valuable. I believe it is correct that altering a mindset and approach can provide positive improvements to individuals, groups, communities and societies – especially if positivity and collaboration can improve the average interaction quality and environment of us all. This can be applied to how we use ‘law’ in our lives, which may at first blush sounds a bit artificial, because many use law without ‘thinking about the act’. We are, perhaps surprisingly, surrounded by law, obligations, duties, rights and moral laws and all of our interactions are generally defined by external and internal constraints of law.

Avoiding exploitative practices
One way to improve how we ‘use law’ is to avoid being exploitative. A well-known social issue faced by medical professionals, doctors and surgeons is that often they are approached outside of their work and asked for on-the-spot diagnoses, hounded with descriptions from exploiters seeking to avoid paying for a consultation or making a trip to the appropriate medical facility. The same applies to legal professionals. The signal words for an upcoming exploitation are: “I have a quick question; it will only take a few minutes.” or “If you help me with this, I will buy you a drink”. The investment lawyers and doctors make in their education, practice and self-development are, I hasten to emphasise, worth far more than ‘a drink’ although social courtesies are still welcomed.

The people who try to take the short-cuts are often the same type of people who have landed themselves in a legal conflict because of taking short-cuts or over-exploiting a situation. There is no one ‘group of people’ who do this. As humans, we sometimes do good and sometimes do wrong. Some exploiters are just temporarily doing so, others have exploitations firmly embedded in their nature. Whatever the formula, the outcomes are not positive.

Different environments for good legal & social outcomes
In free market economies, law is often linked to the freedom of individual first, with a set of constraints and protections relating to how that freedom might impact others, second. In collectivist economies, with some oversimplification to assist brief illustration, the reverse generally applies. Such economies either operate within a ‘common law’ system, where ‘equity and fairness’ are allowed to ‘step in’ to adjust statutes and written law, or a codified situation where the written law is accepted at the moment in time it applies as the most binding – with interpretation, conflicts of laws, good faith and ‘public policy’ principles allowing superior courts to seek to overturn and avoid unfair decisions. In all of these environments, it is achievable to trade off legal doctrine and strict legal application with some greater good, provided care is taken not to dilute rights or the ‘best interests’ principle.

I believe it is beholden on legal professionals to include in their practice a non-exploitation principle. If a client or third party seeks to ‘use’ a lawyer to exploit, the legal professional can point this out, may challenge the exploitation and propose suitable alternatives that may still preserve rights and facilitate commercial success. Sometimes, the ‘gloves come off’ in disputes or where another party is behaving so unfairly that to promote redress and remedy, aggressive stances are required. Nevertheless, opportunities for procuring parties to move back into a collaborative position should not be overlooked.

 

Practical application – all of these principles are high level, but how can they be applied in daily practice?
When negotiating contracts, or developing contracts to be issued to consumers or real estate investors, protecting one party can be achieved whilst still providing a reasonable set of investment criteria and constraints for the other party. Provided a legal professional explains to their client where they wish to provide concessions, reasonableness or even favourable terms to another party, and the client is accepting, better potential balances within contractual relationships can be achieved, which can actually discourage exploitation and disputes if the time comes when one or more parties inspect the contract to consider their ‘options’ in a potential dispute.

This is both an art and a science. Blunt tools, inexperienced rough-edged conduits, produce rough results. Contracts are instruments that must be refined because circumstances and the world in which contracts are struck are not motionless.

If there is a group of people that might potentially suffer from a legal act, such as a community that might be impacted by a building or project, or a person that might come off worse from a situation than others, it is worth seriously considering more than a superficial token designed to improve social perception of the legal act.

Altruism, even when confined to brutal Dawkinianism, is still ultimately worthwhile. It may result in reciprocal altruism, and this may genetically improve the potential for success of next generations within families.

Wrong moves foster bad outcomes
I recently saw an exploiter, a developer in the instance I am thinking of, write a letter to a group who had reached a tipping point of being over-exploited. The developer made threats of further exploitation if the group did not accede to unreasonable demands and become further exploited.

To add insult to injury, this was unashamedly framed as a self-interested proposal designed to allow a family member to take over the management of exploitation, referencing some notional benefits to the group while threatening unreasonable and irrational damage if the group didn’t co-operate. In this instance, many of the group are smart, have reached the end of their patience and are prepared to invest funds in resisting exploitation and achieving a better outcome. Cases are to be filed and entrenched positions have formulated, akin to stalagmites and stalactites that will take years to change their shape.

The group have been advised to consider settlement opportunities, but not in a state of weakness. The outcome of this situation are dozens of arbitration cases and civil claims in the courts. All sides will experience stress, resource wastage and distraction from positive endeavours. However, sometimes it is important to sort out a mess. Further, humans will pay a cost to reduce or avoid exploitative practices; sometimes counterparties seriously underestimate this or are so blind from their exploitative nature that they lack empathy or any sincere altruism.

If a ‘legal wellbeing’ approach had been adopted, even with Dawkinian selfishness, these cases would not likely have materialised. Some form of balance could have been achieved. One party could give away something it didn’t need to hold on to, the other party could adjust their stance to allow the other party to obtain some regular revenue but within constraints to avoid exploitative practice.

Legal wellbeing is therefore not solely in the hands of ‘the lawyers’; in fact, it is in the remit of every participant in legal transactions – which is all humans on the planet. Lawyers and people are not ‘chicken and egg’ in nature. People evolved first, lawyers second – to address the irrational and exploitative nature of humans, not only lawyers.

If we are to evolve further, then in addition to our greenness and carbon footprint management, perhaps our ‘legal wellbeing’ objectives and performance could also be improved. Unfortunately, the aggregate of public policy makers is not suitably qualified or morally equipped to implement tools to regulate society. Society will have to make an effort by itself.

 Contact info:

Hughes Krupica Consulting

PHUKET (HEAD OFFICE)
Hughes Krupica Consulting Co. Ltd
23/123-5 Moo 2 Kohkaew Plaza
The Phuket Boat Lagoon
T. Kohkaew Amphoe Muang
Phuket 83000 Thailand
Tel: (0) 76 608 468

BANGKOK (SERVICED OFFICE)
Hughes Krupica Consulting (Bangkok) Co. Ltd
29/41 Soi Ladprao 22
Ladprao Road
Chankasem, Chatuchak
Bangkok 10900 Thailand
Tel: (0) 20 771 518

[email protected]
www.hugheskrupica.com

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