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Conflict is unavoidable. If you’re not dealing with some conflict today, it’s coming. But conflict should not be feared; in fact, sometimes it results in innovation or strengthens relationships.
Unresolved conflict, however, usually leads to a formal dispute that can be time-consuming, expensive and distracting. Therefore, it makes perfect sense to take reasonable or even aggressive steps to limit conflict.
But the realistic expectation should never be to bypass it. All that said, while the timing and substance of conflict is often unexpected, how we resolve conflict is always within our control. Unfortunately, and simply put, the process of conflict resolution has gone completely off the rails.
Two trends within conflict resolution are concerning. First, the culture of conflict seems to have shifted. We are seeing not only a general lack of civility being normalized but also a heightened intellectual ego when we disagree about anything—I am right, you are wrong, and there is nothing in between. This type of divisive conflict has become acceptable, and it is also often rewarded.
In any forum, whether legal, political or societal, if a conflict becomes hostile and sensational, we appear more attracted to it. Society is obsessed with following antagonistic disputes and immature, often abhorrent behavior within them. On occasion, we are even witness to “fans” cheering for a favorite litigant outside a courtroom. In the words of former Roman emperor Marcus Aurelius: “Are you not entertained?”
Second, there is a decline in meaningful dispute resolution efforts outside traditional, formal proceedings. Good-faith discussions, with or without counsel, and the use of mediation are now often viewed as either a quick, contractual requirement or an inconvenient precursor to the real fight ahead. More parties jump right into a formal dispute with full force and aggression; celebrate every Pyrrhic victory along the way, often publicly through press releases and social media; and appear willing to fight for months or years to the bitter end.
Parties coming together willingly, with a genuine interest in civilized advocacy and a mutual commitment to amicable resolution appears to be the exception, not the rule. Today, we are more focused on winning, rather than resolving. In short, compromise has become a sign of weakness.
For the client, the result of these trends is the loss of time, money and focus. In the wake of bitter, unresolved disputes business partnerships disintegrate, leaving entire industries less congenial and uninterested in working together for a greater good. Internally, employee-employer relationships become increasingly accusatory and lacking in trust. Organizations and people become distracted and lose sight of their mission and purpose.
And relationships don’t just fracture, they break, unable to heal as they live on forever through a trail of texts, direct messages and posts. For lawyers, the result of these trends is no better, advancing what some see as an increasingly unfavorable reputation in the business community and the view that lawyers are not problem solvers but rather hired combatants.
It’s time to take action and shift these negative trends. But before we do that, we must start by being honest about how we got here. This didn’t happen to us. The legal community is at the center of this problem. It’s not a client problem. We are willing participants in both the actions and inactions that created and perpetuate these trends. So what now?
Whether you are in-house or external counsel, everyone in the legal community can and should play a role in ensuring that amicable, efficient and pragmatic dispute resolution is the goal.
The following are just a few steps we can all take to get to a better place:
Root in civility
One would think this is noncontroversial. And I suspect that most will claim that they are in the civilized camp. Yet here we are. We sometimes utilize the childhood argument of “I didn’t start it” to defend our occasional incivility. But we are no better when we punch back, and then it becomes contagious. Being rooted in civility means knowing the difference between reacting and responding. We can choose to avoid reactions and, instead, always deploy thoughtful, relevant responses.
Control your client
Yes, it’s a thing. In-house and external counsel have the ability and responsibility to set the tone for everyone involved in a disputes process. Be purposeful and vocal with the client about your philosophical approach to conflict resolution. If the client desires a scorched-earth, uncivil approach, counsel the client on the potential impact—time, cost and possibly a damaged reputation in the market. Or have the courage to simply say: “That’s not how we work.” There’s another client around the corner.
Commit to pragmatism
“Pragmatic” /prag’madik / adjective: “Dealing with things sensibly and realistically in a way that is based on practical rather than theoretical considerations.” As a community, lawyers tend to get mired in technical, theoretical arguments. While often compelling, we owe it to our client to resist pursuing an academic approach to their conflict. Ask: Does this argument or position further the resolution or further the dispute? Academia and theory have a purpose, of course, but one thing that a professor never has is a client, so let’s avoid the professorial approach to disputes and stay grounded in pragmatic solutions.
Rethink the concept of alternative dispute resolution
It’s time to put the “A” back in “ADR,” or alternative dispute resolution. An expansion of rules and regulations have often made “alternative” options no different than the formal litigation that they were meant to replace. Arbitration, especially when utilizing the behemoth firms, is now highly regulated, rendering the process often equally time-consuming and just as expensive as litigation.
Today’s arbitrations are no longer the true “alternative” that they were intended to be. But lawyers did that—we overengineered the system, even if well-intentioned, and slowly eroded the underlying purpose. In addition, most arbitration firms are staffed almost exclusively with retired judges and litigators. They are performing the same service, in the same manner, as they did in the courtroom, so why do we expect that they will be champions of the alternative?
Instead, why not seek out neutrals who are former GCs, executives and other subject matter experts (HR, finance, contracts) who may bring a more practical view of the underlying dispute? That would certainly help bring some “A” back to the “DR.”
Commit to mediation
Revisit your contract templates, which likely all include a mandatory arbitration clause, and consider requiring mandatory mediation, as well. Then truly lean into the mediation process. If done right, mediation is the most cost-effective, pragmatic and amicable way to resolve disputes. So why isn’t it always Plan A?
This is clearly not an exhaustive list, but hopefully it’s enough to start a conversation and possibly a path out of the current state of divisive, expensive, unnecessarily technical dispute proceedings. Again, conflict is unavoidable and will always exist, but we can control how it’s resolved.
If the legal community reinvents the resolution process, maybe we will gain a reputation as problem-solvers. Let’s pursue true alternative options, control our intellectual ego, lead with respect, and view the concept of compromise as not only an admirable goal but a win. Then we will return to pragmatic, civil conflict resolution.
Scott Chaplin worked as a public company chief legal officer for more than two decades in a variety of industries, including technology, life sciences, defense and national security, consumer products, retail and manufacturing. He also worked as a chief human resources officer, board member and arbitrator/mediator.
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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
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