The Amicable Shark – How to Solve Disputes in Finland?

When I moved to Finland, one of my cultural shocks was how non-confrontational Finns are. I was both surprised and disappointed that the Finns did not seem to fully appreciate the value of having a tough conversation. Instead most Finns seem to find expressing one's dissatisfaction directly to the person having caused it so uncomfortable that they would resort to it only in extreme situations.

I assume that for 99.99% of the world's population, this aspect of 'Finnishness' is perceived positively but the problem is that I was - and still very much am - a litigator, at heart and by education. And so the feisty litigator in me did wonder how my peers could possibly make a living here if so few were interested in a good fight.

When I joined the Finnish business world, it became evident to me that if I was to confront someone here, I ran the risk of them shutting close like an oyster. I had to adopt a much smoother approach of resolving differences of opinion, argumentatively pleading my case would not get me far. So I tried approaching disagreements with raw data and a touch of humor and managed to get my way – sometimes at least. I am sure that despite all my amicable efforts some might have nicknamed me the cranky Canadian from time to time. I can live with that.

As I have now returned to private practice and to litigation, I also have to adapt to the fact that disputes are managed differently here. My experience in litigation comes mostly from a firm where being called a shark was a compliment. I must now swim with the pack and the approach varies both from a style and a process perspective.

For one thing, the overall presentation of a party's position is different. While the North Americans will generally write in a more argumentative storytelling manner, the Finns will opt for a rather no-fuss-stick-to-the-facts approach. A manifestation of this difference is found in the structure of a claim itself. In North America, the conclusions sought will usually be at the very end of the claim, as a final punch line to the story. The Finns instead will start by expressing what they want the Judge's conclusions to be and will then follow with the facts and evidence supporting why they think they should get it. Personally, I find it difficult having to give away the ending right from the start. It is like forcing the Judge to read the last page of the book before he can read the first chapter. I must admit though that starting with the end in mind can be a highly effective technic.

Another difference is found in how disputes are facilitated – or not - through procedural laws. In Canada, like in the US, we do have an extensively intrusive discovery process whereas one can build his case by asking the right questions prior to the hearing on the merit and by going through the other party's files for days, sometimes months. This is how litigators arm themselves for the battle and – let's face it – make a lot of billable hours. In Finland as in most of Europe, no such evidence extravaganza is available for the claimant, at least not to that extent. Apart from the long shot request to the Court for a specific piece of evidence (so one would need to know of or at least suspects its existence), in general the claimant will be left with having to do with what he has. When assessing whether to initiate proceedings this can make a world of difference. Not being able to force the disclosure of the other party's file on the matter does restrict one's chance to prove his case. My initial reaction was to complain that it restricts access to justice as not all the facts might be revealed but in all fairness, the expensive discovery process in North America can, in some cases, become just as much of a denial of justice for some parties.

As of this date, I still have not made my mind as to which system I prefer and probably never will. It depends on the case at hand as well as the mindset of my clients. Sometimes I wish I could spin our version of the truth and sometimes sticking to the straight facts is just more convincing. In some cases I wish we could go fishing in the other party's file and sometimes I am happy they cannot fish in ours.

One thing is sure and common to both sides of the Atlantic though: avoiding Courts and Arbitration Tribunals – no offence intended – is always best for the parties. As for the litigators, working hard to find a solution where everybody wins is a wonderful challenge and a good way to positively channel all that extra feistiness left from the more amicable Finnish process.