I have an expression – “Good lawyers don’t just try cases; they try to resolve them.” Why do I mean by that? I mean that good try to find a resolution that minimizes their client’s attorney fees, reduces their client’s exposure in court, and resolves their client’s legal issues. Unfortunately, law schools don’t teach their students anything regarding the art of conflict resolution. These days, many law students graduate law school without jobs and so they strike out on their own without mentors to teach them important lessons about how to resolve their clients’ cases without resorting to full-on litigation. Unfortunately, having a lawyer who creates more conflict than they resolve usually spells disaster for the client.
Conflict Resolution – The Lesson They Don’t Teach Lawyers in Law School
For all the emphasis law school places on cases, statutes, and rules of procedure, law schools do little to nothing to teach new lawyers how to resolve conflict. If you think about it, this lack of education is remarkable considering that the bulk of what lawyers should be doing is resolving conflict between themselves and other lawyers and conflicts between the parties to any dispute. So, for the benefit of all lawyers, young and seasoned alike, here is a primer to some of the principles behind effective conflict resolution. Let’s begin by examining the ways we are taught by society to resolve conflict.
Four Principle Ways of Responding to Conflict
Lawyers, just like everyone else, learn to resolve conflict by watching their parents, their peers, and the media. In the case of the media, lawyers, just like other folks, enjoy watching popular television dramas and movies about lawyers and the legal system. Obviously, high conflict makes for good drama and higher ratings or reviews. After all, who would want to watch a TV show about lawyers who all work together collaboratively to resolve conflict? That would be a dull TV drama indeed.
Whether you are a lawyer, a doctor, a plumber, or a married couple, most people essentially respond to conflict in one of four ways:
- Avoidance/Impasse – For many persons, they see any conflict as an impasse. So, they respond by avoiding conflict altogether without ever resolving the conflict. The result for both parties? Lose/Lose.
- Giving In – Likewise, there are many persons who are so averse to any form of conflict that they simply “give in” to the other side. The result? The side that “gives in” loses and the other side wins.
- Competition – This is the principal way that I see many lawyers, especially some of the newer lawyers, approach the representation of their clients. Essentially, they take an aggressive “winner-takes-all” approach to any dispute. If you want to learn why aggressive lawyers don’t make effective lawyers, click here. The result is either a lose/lose (scorched earth result) or a win/lose.
- Compromise – This approach is the hallmark of any skilled negotiator and the best result in any conflict. Only through compromise can the parties each share a bit of the loss, but ultimately both share in a “win.”
Positional, Fear-Based Bargaining – “Me vs. You”
Avoidance, giving in, and competition are all part of “Me vs. You” positional bargaining. Not only do I see this fear-based bargaining taking place between the parties (such as husbands and wives) but, unfortunately, I see many lawyers take a personalized “me vs. you” approach to each other. This “positional bargaining” is marked by the following characteristics:
- Blame / Defense
- Attack / Counterattack
- Fault / Justification
- Domination / Resistance
- Right / Wrong
- Win / Lose
The result of positional bargaining is typically inefficient (and costly) negotiations, the failure to fully resolve the conflict, and unfair results. Stated another way, these types of negotiations typically cause more trouble and more legal fees for clients.
Cooperative Problem Solving – “Me and You”
To effectively resolve most conflicts, two basic needs must be met: (1) emotional needs and (2) intellectual needs:
Addressing Emotional Needs – Addressing a person’s emotions or feelings is important to most conflict resolutions (especially in family court). Recognizing the basic emotional needs in any negotiation is the beginning of meeting those needs and moving forward to a resolution. Those needs can be broken down into 4 basic categories:
- The need to have control over the outcome of the negotiations – This need can typically be met by reinforcing to your client (and to the other party) that negotiation is usually better than litigation. In other words, you reinforce that negotiations place the outcome in the clients’ hands instead of letting a judge or jury decide their fate.
- The need to be heard and understood – To meet this need, you need to focus on “active” listening. When we’re negotiating, we usually have an “inner” dialogue going on in our heads. More often than not, instead of listening to the other party, we are thinking about what we will say next in response. Learn to shut off your inner dialogue and actually listen to what the other party’s concerns truly may be.
- The need to be validated – You don’t have to “agree” with the other party’s concerns in order to validate them. You simply have to recognize that, right or wrong, those concerns and needs are important to the other party even if you don’t perceive the situation the same way.
- The need to feel that the negotiations are fair – No one likes to be “strong-armed” or misled during negotiations. If you meet the first three needs listed here, and if you are genuine in your intentions to resolve the conflict, the chances are likely that the other party will feel that you are treating them fairly.
Addressing Intellectual Needs – Addressing the emotional needs of the other party gives rise to motivate them beyond positional bargaining and toward intellectually based cooperative problem-solving. You can address intellectual needs by:
- Creating Options – This is where you brainstorm to find creative solutions to solve the problem. The more options you create, the more possibility you have to reach a resolution.
- Considering Mutual Gains – As you explore options, you may find that there are scenarios whereby both parties achieve their goals to some degree.
- Using Objective Criteria – To illustrate the use of objective criteria, consider the case of a divorce where the parties must split up their assets. If the parties can’t agree on the value of their possessions, such as the value of their home, then it won’t be possible to reach a solution. However, if you use objective criteria, such as preparing a certified appraisal of the home, then negotiations can proceed beyond the value of the home and towards the ultimate resolution of dividing all of the parties’ assets.
- Using Fair Procedures – To illustrate using fair procedures, consider the last example where the parties can’t agree on the value of their home. Although you may present an appraisal of the home, perhaps the other party doesn’t trust your appraisal. To ensure the negotiation process is fair, you can invite the other party to have their own appraisal conducted, and perhaps average the two appraisals to reach a value.
Real-World Example of the Consequences of Positional Bargaining
In a recent family law case, I dealt with a new lawyer who left law school and hung out their shingle. My client (the mother) alleged that this young lawyer’s client (the father) was physically abusive towards my client and her children. In court, this father, through his lawyer, sought more liberal visitation (and custody) of the children. Before court, I attempted to negotiate with the other lawyer through various means such as suggesting family counseling and suggesting visitation could increase after he attended anger management counseling. Instead of negotiating, the young lawyer continuously argued with me that my client and the children (who also alleged abuse) were liars. Additionally, the lawyer threatened that my client would lose custody of her children because, after 3 years of separation from her husband, the mother had exposed the children to her boyfriend. In other words, this lawyer engaged in “competition” and fear-based positional bargaining.
In court, the father’s lawyer actually attacked the credibility of the oldest son who reported that the father had hit him numerous times. Stated another way, to spend time with his son, the father’s lawyer argued that the boy was a liar. It doesn’t take a seasoned lawyer to see that the approach taken by the father’s lawyer didn’t improve the relationship between father and son. Additionally, because the case involved allegations that the father hit the children, the family court judge was required, by law, to make a report against the father with the Department of Social Services. Ultimately, the father spent unnecessary attorney’s fees, weakened the relationship with his kids, and he brought on a DSS investigation against himself. Because the father’s lawyer used a “competitive” approach to conflict – there were no “winners” including my client who paid substantial attorney’s fees to deal with this crisis.
“Good Lawyers Don’t Just Try Cases; They Try to Resolve Them.”
Conflict is inevitable. As uncomfortable as conflict may be, conflict presents opportunities for change, growth, and a better understanding of others and their perspectives. Additionally, voluntary resolution of conflict empowers people and strengthens their sense of personal responsibility. After all, most people make better decisions for themselves.
In the end, our response to conflict determines whether the outcome is constructive or destructive. Cooperative problem solving must be a conscious choice because it isn’t our cultural norm to choose cooperative behavior. As lawyers, it is our job to guide our clients to escape from the normal responses to conflict of domination and control – positional bargaining – and to choose to solve problems cooperatively.