By Stewart Levine
It’s not about winning or losing. It’s about getting people back to their lives. Here’s a primer on unlearning the craft of conflict.
During my second year of law school I had my first “real” lawyer’s job. I was an intern at a local legal services clinic. On my first day I was handed 25 cases “to work on.” This would be my “job” for the semester. Three weeks later I asked the managing attorney for more cases. When he asked about the first 25 he gave me, I told him I resolved them.
He was very surprised–and very curious. He asked how I did it. I told him I reviewed the files, spoke to the clients, thought about a fair outcome and what needed to be done, called the attorney or agency on the other side and reached a satisfactory resolution.
I knew nothing about being a lawyer! I had no idea whether the cases were difficult, needed to take a long time or had to be handled in any particular way. With a “beginner’s mind,” I found the solution that worked best for all concerned. Simple? It was for me.
I spent the next 12 years becoming a “successful” lawyer–and becoming less effective at resolving matters. Then, feeling frustrated, anxious and fearful, I stopped practicing law. I spent the next 15 years unlearning–recovering what I knew about resolution when I started, discovering its component parts and learning how to teach and model it for others.
I found that the most effective judges and lawyers understand people’s real concerns. They know what to honor and what to respect. They know how to frame situations and condition people’s expectations. They embody a tradition that accommodates competing concerns and builds consensus. Winning or losing is not the point of their work. Their game is resolution, and getting people back to their lives. They are “resolutionariesSM.”
Developing the Attitude of Resolution
The 10 principles that follow reflect the values that make up the attitude of resolution. This attitude is the place of beginning, a critical first step. It is not enough to go through the motions of any dispute resolution process mechanically, without first cultivating an attitude of resolution.
It will take time to change the way lawyers think. The beliefs and patterns you have about conflict took a long time to develop. They are embedded deeply and operate in unconscious ways. It will require reflection, intention and repetition to change our thinking habits about collaboration and conflict. Faith and trust in yourself and others is called for. You can accomplish it.
This is a foundational step. The goal is internalizing the principles.
Abundance. One of the primary contributors to adversity is the belief that “if you get yours, then there won’t be enough for me.” This is a scarcity mentality. But the most powerful negotiating tactic is to find out what the other side wants and figure out how they can have it. The likelihood is that they will try to do the same for you. In most situations there is enough for everyone to get what they need. Rather than fighting about dividing a small pie, we need to focus on how to make the pie bigger.
Efficiency. We spend a great deal of time and process wasting resources. Often the patient dies while we are operating–the business is ruined or the assets are consumed during the battle. How many times have you seen the marital home, the only asset of a marriage, consumed by the process, or the cost of litigation exceed the amount at stake? How many lawyers have huge, never-to-be-collected receivables? We need to be concerned early on about using resources efficiently, not wasting them.
Creativity. Lawyers are trained to see issues and problems. We spend a good part of our legal education studying adversarial situations. We learn to think in terms of problems and issues. We look for them in every situation instead of focusing our brainpower on the potential creative solutions that will take care of the needs and concerns of all involved. We need to use creative thinking to figure out how everyone can get what they need.
Fostering resolution. A key to becoming a resolutionary is becoming a quick study in process design. The traditional adversarial process often makes the conflict worse. The time it takes and the standard admonition to cut off communication are not very helpful. The other side becomes demonized. As the battle escalates, it becomes the enemy. The systems are systems of “confliction,” like pouring gasoline on an already-burning fire.
A resolutionary looks at the situation, and from the perspective of standing in the clients’ shoes, tries to design the best process–a process that will get to resolution quickly without making things worse. Bottom line outcomes are more important than following the steps prescribed by some traditional process.
Mediation Is not for Sissies was written by a colleague a few years ago. The premise is that traditional litigation follows a set of rules and has a degree of predictability, while mediation has no rules … you go where resolution wants to take you.
Vulnerability. This is not about opening your chest cavity, bearing your soul and putting your heart on your sleeve. It’s about telling the truth you believe in the situation, and listening to what others say is their truth. Posturing wastes resources. The sooner people have the opportunity to share their side of a situation directly, the sooner resolution can happen. Hiding behind procedures or rules of evidence does not help the catharsis and disclosure needed to resolve a situation. Authenticity is the key.
Long-term collaborations. The resolutionary uses a context of fostering relationship. This is the basis of all productivity and satisfaction. Even when relationships are broken down, it is possible to see the situation as temporary. The worst conflicts are among people with the deepest relationships. A resolutionary sees relationships as long term. That is a perspective that fosters continuity. When you consider the cost of putting in place new personal or professional relationships, it is obvious that preservation is an important value.
Feelings and intuition. As lawyers, our conditioning is that our primary means of analysis is logic. Resolutionaries understand that legal practice is usually more about life situations and transitions that people experience. In guiding them to satisfactory results, we must go beyond logic and include the human and emotional aspects that impact the personal and professional lives of our clients. Our internalized experience over time also will allow us to trust our own instincts and intuition in advising clients. Given that the transitions and major life transactions we advise clients through are based on personal relationships, we can trust and use the personal assessments on which we base our advice.
Disclosing information. Traditionally, lawyers withhold information. We divulge only what we have to, or what the rules require. We come from the premise that information is king, and the less “you” know the better off “I” am. Anything less than full disclosure creates mistrust and sets up a dynamic that does not contribute to resolution. Resolutionaries encourage communication and disclosure. They realize that the resources consumed in holding on are not worth the cost of trust and getting to the bottom of things.
Learning. Resolutionaries understand that their goal is not to win at all cost, but to share information and discover the concerns on the other side. They hold the conflict resolution process as a learning exercise. Everyone teaches everyone else their perspective and what’s behind it. When everyone shares this way, the potential for a creative result–a result beyond expectation–becomes possible. As a law student, this is what I thought litigation was about–getting the best result through shared information.
Being response-able. To be a resolutionary is to see the occurrence in a larger context. Resolutionaries try to foster the development of others. They realize there is a great cultural tendency for people not to do the work of taking responsibility for resolving their own situations and to look for another person to take care of “it” for them. Resolutionaries understand that people learn in adverse situations and they coach their best clients to be responsible. It’s easy to exemplify noble character when times are good. This gift gives people the experience of participating in resolving their own conflict, and in the process discovering and experiencing their own character.
Evaluating a Situation the Resolutionary Way
When a matter is presented, resolutionaries ask themselves the following questions:
Who has what concerns? What is each person’s reality about the situation? (They stand in everyone’s shoes so they can treat everyone fairly.)
How quickly must action be taken?
What is the measurable loss and continuing cost and risk of nonresolution? (They are sensitive to wasting resources.)
Who is needed for effective resolution? (They want all essential parties to participate.)
How do we get everyone to the table with the right attitude? Who needs an attitude adjustment, and what’s the best way to do it? (They realize getting people to the table is more than half the work.)
What constraints or environmental conditions exist? (They need to know the context in which the conflict is taking place.)
Are there laws, regulations, principles, customs, agreements or other standards for the situation? (They look for objective metrics as a basis for evaluation.)
What future relationships are essential? Who will continue together? (They are thinking of the long term.)
What is acute and needs immediate attention? (They are concerned with others’ resources and damage control.)
What’s the best action plan? Who will do what, by when? (They understand that the best way to get to a place is to set a goal; in the process you become collaborators and teammates.)
These steps allow you to be an advocate without being an adversary.
When you probe and listen to the underlying concerns of the other side, accommodation and satisfaction for everyone is possible. Solutions can be invented to accommodate the interests of both sides. Sometimes, strong partisan advocating for each side is the best way to understand all parameters of a situation.
You must know the difference between advocating strongly and being adversarial. Many lawyers operating today ignore the difference. Remember that effective resolution comes from relationships created from an honorable attitude. Unfortunately, over the past few years “Rambo” tactics have become commonplace. We all would be well advised to read the best-seller Everything I Need to Know I Learned in Kindergarten.
The core competency of the resolutionary is the ability to lead people to a new vision that returns them to the real business of their lives, without the ongoing internal chatter of continuing conflict. The job of the resolutionary is to lead the client to resume collaboration and cooperation.
The solutions of the resolutionary reestablish the working relationships that are essential for business, family or government activity. They provide options that contribute to the present and future quality of our lives.
Your initial, automatic reaction may be that law is based on an adversarial model, and to suggest otherwise would undermine the system. I suggest that lawyers exist to facilitate the machinery of our institutions–commercial, governmental, political and charitable. If we are better able to facilitate through collaboration, then that is the way to proceed.
Given the levels of professional unhappiness, client complaints, citizen frustration and costs of conflict, we have little to lose and a huge upside potential. In the great majority of situations, clients will be happier, societal transactions will move forward with less friction, and lawyers will reap the benefit of deeper levels of personal and professional satisfaction as they accomplish their work with, not against, other lawyers.
We have an opportunity to reposition ourselves as conflict resolvers. We can be the solution, not part of the problem. In so doing we will restore pride in the calling we answered.
Shifting a basic premise on which a system is based is no simple matter. But if we miss what people are asking for, we will miss a golden opportunity.
Author’s Note: ResolutionarySM is a service mark of Stewart Levine. The term was first articulated by a satisfied client in 1991 who, after a very delicate matter, looked at me and exclaimed “you are a resolutionary.”
What a Resolutionary Embodies
Resolutionaries have the following qualities and abilities. If you aspire to being a resolutionary, it’s time to start cultivating these qualities.
Collaboration–They treat everyone respectfully and are always open to learning.
sense–They make the complex simple.
Confidence–They know the value they contribute; they act on their assessments.
Creativeness and innovativeness–They design what they need to get the job done.
Empathy–They have compassion; they honor and legitimize everyone’s concerns.
Fairness–They understand that tomorrow is another day; winning is not everything.
Faith and trust–They know the situation will be resolved.
Open–They create trust and the presence for people to open up into.
Getting to the core–They have an uncanny ability to see the core of the conflict.
Honesty and integrity–This generates trust in everyone; they walk their talk.
Intelligence–They are smart and aware of what’s really going on.
Judgment–They have experience and a sixth sense of what will work.
Life experience–They have high mileage (bald, gray or possessing an old soul).
Listening skills–They listen with their entire presence and hear
what isn’t said.
Control of the process–They know process is integral to resolution.
Open mind–They are not committed to a particular resolution.
Practicality–They try whatever works.
Care for people–They know it’s always a relationship problem.
Tolerance for conflict–They remain centered, grounded and fair in the storm.
Cover Story of The Journal of the American Bar Association/ October 99
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