by Dan Johnson

The Futurist
World Trends and Forecasts, April 1999

The growing practice of trying to settle conflicts through litigation is not only expensive, it often fails to achieve long-term resolutions, according to Stewart Levine, an attorney and author of Getting to Resolution.

The full cost of court battles includes more than just the fees to lawyers and other professionals, says Levine. Litigation can also claim months and even years of people’s time, erode the combatant’s productivity, and reduce their capacity to take advantage of opportunities. Other costs include the loss of important relationships, such as a spouse or long-time business partner, and the energy wasted in anger and fear.

The legal system is an adversarial arena that promotes conflict, secrecy, and poor communication, says Levine. Lawyers, who are trained to see disputes in terms of narrowly defined issues and problems, often push aggressively for the kind of outcome that the system supports: a win for their client and a loss for the “enemy.” Getting to Resolution sets forth a new paradigm for negotiating lasting resolution.

“Looking for the fair outcome from everyone’s perspective leads to resolution,” writes Levine, who advocates resolution through a collaborative process aided by a mediator, or “resolutionary,” who emphasizes long-term solutions. Levine compares a resolutionary to a lawyer practicing in a small town who must take the long view in order to maintain lasting civil relationships with other attorneys in the community. An opponent in one case might become a collaborator in the next. “Adopting a short-term perspective violates standards of ethics and fair play,” he writes.

Collaborative resolutionaries emphasize creativity. Mediators suggest that conflict is normal and that it should be viewed as an opportunity, not a problem. They reject the legalistic either/or mindset of winner-take-all and instead try to broaden the field of potential solutions available to their clients. And they always stress the long view.

Levine cites an example: a conflict he helped to resolve between two brothers who had been successfully running the family business they had inherited from their grandfather. This changed when one brother, who wanted to aggressively expand the business, brought in outside consultants to make his case. The second brother resented the new advisers and feared that the proposed expansion would erode the family tradition of quality and customer service. Communications between he brothers suffered as each fought hard for his position, and the business began to decline. Angry and suspicious of one another, the partners were headed for a costly legal battler, but tried resolution instead.

Levine redefined the conflict for his clients by stressing the high emotional and financial price of litigation, emphasizing that the failure to reach an agreement could destroy the brothers’ relationship. He encouraged each brother to tell his side of the story, and a shift toward cooperation began as each recalled the camaraderie they once shared. The final result was an agreement detailing a new direction: The brothers divided the resources of their former partnership, started separate new businesses, and agreed not to compete with each other. The process of cooperative resolution also provided the structure for their future relationship. As Levine puts it:

“I see the new paradigm as a vision of two people, standing shoulder to shoulder, viewing a situation of potential conflict. Under the old paradigm they would be squared off, face to face, confronting each other. In the new paradigm they are looking at the situation together, wondering how they will meet the challenge.”

Source: Getting to Resolution: Turning Conflict Into Collaboration by Stewart Levine. Berrett-Koehler Publishers, Inc., 450 Sansome Street, Suite 1200, San Francisco, California 94111.

10 Principles for Conflict Resolution

1. Assume abundance. If you believe there is “enough”–enough for you and other to get what they want–resolution will be easier.

2. Use resources efficiently. Adversarial thinking wastes resources. A detailed agreement made in collaboration is the most-efficient tool for resolving conflict.

3. Be creative. Focus your resources on creative solutions, rather than anger, by anticipating conflict as an ordinary fact of life.

4. Foster resolution. By addressing differences in a context of resolution you can create a shared vision of the desired outcome.

5. Be open to vulnerability. It’s better to “just show up and tell the truth” than to resort to bravado and posturing.

6. Form long-term collaborations. Adopt a long-term time frame that allows important relationships to be retained after the conflicts are settled.

7. Respect people’s feelings. Expressing strong emotion is part of the collaborative effort that assures everyone’s concerns are heard.

8. Fully disclose information. Information is the raw material that leads to resolution. Full disclosure builds trust and good faith.

9. Learn through the resolution process. Forget winning. Keep your mind open to learning facts, concerns, and perspectives of all people involved.

10. Become “responseAble.” Deferring to professionals can steal your experience of finding out who you are. You become “responseAble” when you deal personally with the conflict.