Imagine this scene between a disgruntled bank director and the CEO.
Director: How did these bad loans happen?
CEO: They were good when we made them. The economy has gone south and you guys agreed and approved these deals.
Director: But we’re not bankers. You were supposed to know. Now the regulators are all over us.
This exchange has occurred in countless bank boardrooms lately. For most directors and CEOs, this is their first experience living through a severe credit crisis and they are now learning how to manage a bank – and boardroom tensions – in this environment. We offer the following guidelines to help navigate this difficult experience so that the board and bank can emerge stronger.
Repeated, emotional “debate” should be viewed as a “dispute,” which boards need to address immediately. It is time to address the dispute if it:
- has divided the board into “camps” or has divided management from the board
- becomes known to the employees, stockholders, customers or community
- consumes too much board meeting time and interferes with making other decisions
- causes the board to doubt the CEO’s recommendations or increasingly turn to attorneys and consultants on key decisions
- prompts previous undercurrents to resurface and boil over
- spurs conversations between directors outside of board meetings on a particular issue, and complaints arise that it is not being addressed in an open session
There are many natural reasons directors attempt to ignore a festering dispute, however, the costs of denial can substantially impact the board. Denial can result in a drain on time and emotions, poor decision making, decreased morale, loss of key directors or officers and regulatory perceptions of inaction.
Dispute resolution cannot begin until it is determined who will facilitate the process. Some boards have effectively used an insider who is not a combatant. Outside facilitators, however, are advantageous in dealing with trust issues and other emotions. A neutral party, such as an attorney or consultant, can be invaluable.
When choosing a facilitator, it is important to consider:
- Is this person experienced as a director or an advisor who has regularly attended board meetings?
- Does this person understand the special issues facing bank boards, including regulatory issues?
- Will this person be patient, a good listener, and maintain neutrality and independence?
- Take special care if a local facilitator is used, and have any facilitator sign a confidentiality agreement
- This person must understand the unique dynamics between board/governance and CEO/management.
- A good facilitator should help the board develop their solution, and one that is owned by the entire board.
Based on our experience with bank boards, we offer some suggestions on dispute resolution:
- Trust issues exist in bank boardroom disputes that worsen as disputes go unresolved. Again, we urge boards to deal with disputes immediately.
- Power imbalances exist in the boardroom. The CEO is the only person who can be fired and therefore may feel isolated and threatened. It is beneficial to have a consultant, such as a former bank CEO or chairman, to serve as a confidant. Additionally, it is important to remember that all directors equally share liability regardless of their personal company stock holding. Their fiduciary responsibility is the same as the larger stockholder.
- Scheduling routine executive sessions provides a forum for independent director discussion, which is healthy and beneficial. Following executive sessions, one or two directors should communicate the results to the CEO.
- Create a written understanding of the resolution once it is reached. This allows everyone to understand the resolution and helps create a sense of closure to the process.
Boards often determine the true source of a dispute is related to the bank’s governance process.
- Many boards realize they were not properly involved in setting risk parameters or overseeing compliance, understanding loan risk concentrations, and understanding how lending strategies had drifted toward risky waters.
- An unhealthy understanding of the board’s role versus the CEO’s role might exist. The recent banking stress has caused many bank boards to properly redefine their role from a “social/advisory” to a “fiduciary/governance” role.
- Communication process improvements might help reduce the probability and severity of future disputes.
- Is the dispute simply a “rough patch” or has it revealed a root cause that points to performance/qualification issues with the CEO, or, conversely, the board?
During inevitable future disputes, who does a CEO turn to if he feels there is a dispute with a director or the board? How does the board make it easier to identify and resolve small disputes before they become large ones? Most governance experts agree that as a best practice, boards include a dispute resolution process in the board policy, conduct dispute resolution training, and even consider conflict resolution skills when recruiting new directors.