The Slippery Slope of Conflict

Just in case you thought Collaborative Law (Reconciliation), Negotiation, Mediation, and Arbitration aren't really the ways we should be resolving conflict, take a look at the The Slippery Slope illustration from Peacemaker Ministries. Notice that Litigation is listed as an attack response on the escalation side, right after Assault and just before Murder.

Why are we, in the US, so quick to jump over all the other responses and move directly to Litigation? When you call your legal department or outside counsel, is the first, or only, suggested solution a trip to the courthouse? What about other ways of addressing conflict? Do you suppose there are better ways? Why do you suppose the other ways have survived for so many centuries while litigation is relatively new and has fallen out of favor in many cultures?

Perhaps the above list of questions will help you formulate your own list of questions for your legal staff. Better still, perhaps you could resolve your own conflicts with a bit of coaching or self instruction.

It may be legal, but is it right?

Conflict within an organization

How should I handle conflict within my organization?

Embrace it! Thank the members for their differences of opinion and their willingness to share. Without healthy disagreement and discussion, organizations become stagnant. If the boss hires nothing but clones, the organization may be “tight knit” but that is at the expense of being able to relate to the rest of the world. Without various opinions, ideas are never explored. The environment becomes stifling and individuals no longer step out to express themselves. Any good meeting facilitator (or mediator) will reserve ample time for brainstorming without reaction or criticism. A meeting to generate product or process improvements needs open, frank discussion without the fear of retribution. Think about Apple or Google and you can see how conflict can be very beneficial.

However, (isn’t there always a “however” or a “yes but” – unless you’re an attorney in which case it becomes a “but for” or “except that”) unmanaged conflict dissolves or escalates, depending upon the viewpoint, into disputes. Then the organization becomes dysfunctional either short term or long term. In an organization where there is a culture of conciliation, individuals may overlook the offense, talk to each other, involve a coach to assist with the reconciliation, or involve an internally trained mediator.

If the dispute is not resolved internally, the parties may seek assistance using an external mediator or arbitrator. Beyond those alternatives, they start on the path toward the courthouse.

Fortunately, Collaborative Law has now moved beyond the arena of Family Law to the business world. Disputes with or between employees, with customers, and with suppliers are now being resolved outside the courthouse without the use of third parties.

With the final reading and approval of the Uniform Collaborative Law Act in 2010, states will have a model for statutory implementation (some states will no doubt enact their own statutes before 2010 and the Texas legislature will take up the issue when they meet again in 2011).

But we don’t have to wait for legislative involvement since the courts in our area recognize and support the collaborative process.

If you have conflict, appreciate it and manage it. If you have disputes, deal with them early and effectively using the process most likely to deliver the desired results for the parties.

It may be legal, but is it right?

A Conversation with a Litigator

An interesting conversation occurred between a Collaborative Practitioner and a Litigator after the Collaborative Law Section meeting at the local Bar Association. The Litigator made a number of accusations and assertions concerning the use of the Collaborative Process:

1) “The practice of Collaborative Law attracts lawyers who can’t find their way around the courthouse and who don’t know how to litigate.”

2) “If you look at the attorneys beginning to practice Collaborative Law, you’ll find they are generally young or have a business background and have not been Litigators.”

3) “As a Litigator, I can win more cases and obtain bigger settlements than the Collaborative Practitioners can achieve.”

4) “The Collaborative Practitioners are running up bills and using all the assets so there is nothing left when they finally turn the matter over to the Litigator.”

Sadly, this seasoned attorney stated that he attended the meeting just to see if he could network with Collaborative Law Practitioners for referrals of those cases where the parties opt out of the Collaborative Process. He was not interested in understanding the process or learning enough to be able to offer the Collaborative Process as an alternative to Litigation to his clients.

A couple of us gently explained the future of the practice of law (see “The New Lawyer: How Settlement Is Transforming the Practice of Law” by Julie Macfarlane, for a study of the progression of the profession) and the normal development of a society from lawlessness through a period of “law” to collaboration.

Lawyers have been hired to be the warriors for people in conflict so they no longer have to physically fight or kill each other over a dispute. Although they are sometimes considered to be counselors, many lawyers have forgotten this role or view it only as part of the preparation for “war” in the courtroom. The New Lawyer is a “conflict management advocate” for his client and avoids the infliction of emotional and financial distress whenever possible.

In response to the assertions, we stated:

1) Collaborative Lawyers are no more or less competent than those making a living in the courthouse. We have merely chosen to put the interests of the clients ahead of our personal interests. With greater than 90% all cases being settled before trial, does it make sense to conduct trial preparation rather than expending that energy in resolving the dispute in a timely manner? Litigators enjoy the fight and the spotlight – nothing wrong with that. Collaborative Practitioners enjoy problem resolution, maintaining on-going relationships between parties, and allowing the parties to work on a solution that may not be available through the courts.

2) Many attorneys beginning to practice Collaborative Law are generally young or have a business background and have not been Litigators. However, many entering the practice are middle aged or older, and may have been practicing law all their lives. Certainly, those under 35 have grown up with the web, instant access to information, sharing of ideas, working in team environments, and quickly moving beyond conflicts. Why would it surprise anyone that young law school graduates are disillusioned with the current judicial system’s method of dispute resolution? Those attorneys who have been in management positions outside of a law firm no doubt are better positioned to assist their business clients in addressing the issues and developing solutions. Is it surprising that they find the structure of the Collaborative Process appealing? Finally, of the members of the Section at the meeting, the vast majority have been Litigators – many for more than two or three decades. Perhaps they have now found something they could not provide to their clients in all those years of doing battle.

3) As a Litigator, you are concerned about winning and winning big. In the Collaborative Process, the focus shifts from the attorneys in the spotlight to the clients working on resolving their differences by expressing their interests rather than their positions. Why wouldn’t the client want to be involved in the resolution process and keep the dispute out of the public eye? Should the use of the legal system be about the lawyer or about the client?

4) The Collaborative Practitioners use assets to resolve disputes. If the parties had been able to resolve the issues without assistance, they would have done so and avoided all expenses. However, most Collaborative cases are resolved faster and at less expense (both financially and emotionally) than cases taken through the courts. If a party opts out of the process, additional assets will need to be used to go through the litigation process, but that is a known risk; just as an appeal from a trial is a risk in the litigation process. Doesn’t it make more sense to try to resolve the dispute through an agreed upon process with a controlled outcome where the parties may maintain complete privacy? The Collaborative Process, done correctly, does take time and hard work and professional fees will add up; but consider the alternative.

It may be legal, but is it right?

Business Relationships Maintained Through Collaborative Law

If you are in business, you know the importance of relationships. You spend time and money establishing, developing, and cultivating relationships. Your business depends upon the transactions and contracts you execute with the parties with whom you have relationships.

Unfortunately, sometimes conflicts arise. Given the global economy and the mobility of the workforce, an unresolved conflict or a broken relationship not only impacts current business, but it may also come back to haunt you years later. Often you deal with conflicts before they become disputes. However, once at the level of a dispute, you may find yourself headed to the courthouse for resolution.

But wait! It does not have to be that way. There are other means of dispute resolution; one of which is the collaborative process.

Remember when you negotiated the contract? Similar concepts apply to resolving the dispute. The collaborative process allows you and the other party, perhaps a supplier, customer, or reseller, to work together the way you did in forming the relationship and the resulting contracts. You set your own schedule for discussions, focus on the interests of the parties, explore all possible options, keep your negotiations confidential, and you don’t involve the courts.

Best of all, relationships may be maintained. The relationship with the other party may remain intact to allow for other contracts. And, more importantly, from a business perspective, potential relationships with other vendors and customers are not negatively impacted by adverse publicity or the belief or observation that your only method of dispute resolution is through the courthouse.

The collaborative process works well in resolving disputes over purchase and sale agreements, operating agreements, subcontracting agreements, promissory notes, employment agreements, non-compete agreements, vendor / customer contracts, lease agreements, nondisclosure agreements, and many other business contracts and situations.

Before following the path of litigation, consider some of the benefits of the collaborative process:

Preservation of existing relationships.

Avoidance of damage to future relationships.

Control of schedules, experts, communications and costs.

Avoidance of courts.

Maintenance of confidentiality.

Consult with a Collaborative Law attorney to see if your situation may be resolved through the collaborative process.

It may be legal, but is it right?

Collaborative Law (presentation notes excerpts)

Collaborative Law – Getting Back to Business
(excerpts from presentation notes)

All of us are involved in business. Businesses are in business to generate profits. When you are in court, unless you are a lawyer, you are not generating income.

Collaborative law gets you away from the courts and back to business.

A simple definition of Collaborative Law is “settlement by agreement.” That means no court intervention. The dispute is resolved between the parties, and relationships are maintained. Both parties have trained lawyers to help them develop solutions, and the parties cooperate. And, all the information discussed in reaching the settlement is kept private.

To understand Collaborative Law, we have to understand conflict. What causes conflicts and why do some conflicts become disputes? Differences? What about Basic Human Nature? Within a business, differences, and our imperfection, leads to conflicts.

Given that there will be conflict, is it all bad? Absolutely not! Within your organizations, you don’t have innovation or improvement without going through the process of conflict. However, conflict may lead to disputes, and disputes lead to breakdown within organizations. Left to fester, disputes lead to destruction.

But, our society has designed ways of coping with disputes. In an organization where there is a culture of conciliation, individuals may overlook the offense, talk to each other, involve a coach to assist with the reconciliation, or involve an internally trained mediator. If it is not resolved internally, the parties may seek assistance using an external mediator or arbitration. Beyond those alternatives, they start on the path toward the courthouse.

Collaborative Law fills the void between one-on-one discussions and involvement of an outside referee.

The most important reason to go through the collaborative process is to maintain relationships. You may say, I don’t care about one customer or one supplier, there are plenty more where they came from. However, your other customers and suppliers, and potential customers and suppliers are watching to see how you handle yourself. Relationships extend beyond the immediate conflict and are preserved through the process.


What is the Collaborative Process?

First, it is voluntary. Both parties must agree to go through the process.
Next, both parties need to find trained attorneys; not litigators who want to run up bills, but lawyers who are interested in avoiding conflict, managing conflict, and assisting the parties in resolving disputes. The best Collaborative attorneys for business disputes are those who have years of business experience. You’ll want to find someone who has been in the business world and who has resolved conflicts within organizations and between organizations. The benefit to you is that you have an advocate for your business, not just a hired gun.

Next, there is a face to face meeting in which an agreement is signed. The agreement sets forth the process. A schedule of meetings is prepared, and agenda is set for the next meeting. Typically, meetings are only two hours long and everyone has homework for the next meeting. The benefit is that the parties control the schedule.

What happens at the meetings? The issues are recorded and the parties have an opportunity to express themselves. Just as important, the parties have the opportunity to listen to the other side – directly rather than through the attorneys. The attorneys assist the parties and are not the mouth pieces for the parties. The benefit is direct participation without filtering.

During the process, there will no doubt arise a need for more information. Documents and other information may be necessary. Unlike in litigation, all parties cooperate in compiling the information. The data is shared in the meetings. The information gathering is informal. The benefit is that the information is gathered much more quickly and at a fraction of the normal discovery expense.

It may become necessary to hire some experts. In a business dispute, perhaps an outside accountant is needed, or a surveyor, or a chemist. In this process, the parties jointly agree upon and hire the expert. If the experts can’t address an issue, that portion of the discussion may be handed over to a mediator or arbitrator – but the parties still maintain control. The benefit is control of the experts.

After all the relevant facts are gathered, the parties work on various solutions to the problem. Options are listed and discussed. Only then do the parties come to a solution; not necessarily their original “position”, but rather a solution that addresses their “interests.” The benefit is that the Parties are free to brainstorm and dig into underlying interests.

Finally, we get to the results:
An agreement is reached without going to court.
An ongoing relationship may be maintained with the other party.
Costs are typically less than using the litigation path.
Private matters are kept private.
And satisfaction is achieved through control of the process.


Let’s take a look at the differences between Collaborative Law and Litigation.

First, the process of litigation is completely adversarial. There is no “problem solving” and very little agreement.

Second, typically, you will become involved in an emotional roller coaster where you begin to question your own interests because there will be an attempt to intimidate. You’ll wonder whatever happened to the original problem and how, and when, the problem will be solved. You’ll be speaking to and through your attorney who will attempt to control you and your statements. Eventually, you’ll say to yourself, “Why don’t I just talk to the other guy? I don’t need all the filtering.”

In litigation, you’ll be inundated with discovery requests and hours if not days will be spent in depositions. If you think a phone call to your attorney is expensive, just wait until you see the bills for trial preparation. The attorneys will ask for everything remotely related to the case, and you’ll have to pay for lawyers and employees to gather the information. Then try to plan your business trips and annual vacation around the court docket.

Do you think the newspapers print all the news that’s fit to print? No way; they will print anything to damage your business. Nearly everything in the case will be part of the public record.

And where do you suppose your attorney is during the months and years leading up to trial? He’s trying to settle the case (95% of all cases settle before trial). But he’s also preparing his case for trial. You never know which 5% of the disputes will actually make it to trial.

If you thought attorneys are expensive, try finding a cheap expert. Why should the parties hire two experts to take opposite positions at the trial? Why not agree on one expert to do the research and render an opinion that both parties may use?

Do you really want to give control of the future of your business to a jury? Wouldn’t it make more sense to maintain control of the situation?

What if someone misunderstands the other side or a mistake is made? In the Collaborative Process, there is a requirement for the correction of errors.

Full disclosure in litigation? Forget it. If you don’t ask, you don’t get. In Collaboration, the parties base their settlement on all the facts that are relevant; and remember, the information is confidential.

And finally, have you ever been up against a wealthier opponent? In collaboration, you have a say in how much is spent.

Given all the benefits, which approach would you prefer?

If you walk the maze to the courthouse, your attorney will be working on Pleadings, Discovery, Depositions, Motions, Hearings, and Orders. If you choose to work the issue on a collaborative basis, your attorney will be with you at the table, advocating for your business, and working on creative solutions.

The problems with the judicial system are not new nor are they unknown. Abe Lincoln warned law students about it. A former Chief Justice had reservations about the system. And, local attorneys are recognizing the faults with the litigation process.

As a business person, what can you do to address conflicts before they become disputes? It is up to you. You must create the right environment. A workplace in which conciliation is a way of life is a great beginning. Do your people approach each other when there is a conflict? Do you have trained conflict coaches among your population? Is your HR trained to recognize conflict and address it?

After that, you’ll need the right processes. If you do have a conflict, intervene early. Make sure you have trained legal counsel. Does your legal counsel have broad experience in business? Does your attorney understand the mediation process? Has your attorney been trained in Collaborative Law? Does your attorney connect with people at all levels both inside and outside your organization? Does your attorney have language in your contracts in support of this process?

Remember, conflict resolution is not just a process, it is all about relationships.


It may be legal, but is it right?