By Stewart Levine
The following article is adapted from “Getting to Resolution: Turning Conflict into Collaboration” recently named one of the 30 Best Business Books of 1998. It suggests a new paradigm for the legal profession – a calling noble in its tradition, but troubled it it’s current identity, and high level of professional dissatisfaction. I hope the article is helpful and provocative…
A man receives only what he is ready to receive. We hear and apprehend only what we already half know. Every man thus tracks himself through life, in all his hearing and reading and observation and traveling. His observations make a chain. The phenomenon or fact that cannot in any wise be linked with the rest of what he has observed, he does not observe.
By and by we may be ready to receive what we cannot receive now.
Henry David Thoreau
THE SEEDS OF RESOLUTION
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 25 that he gave me, I told him that I resolved them.
He was very surprised – and very curious. He asked how I did it. I told him that 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 inclination that the cases were difficult, needed to take a long time, or had to be handled in any particular way. With common sense and 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.
As a young attorney, although I listened politely to more senior lawyers, I was surprised at the coaching I received. Standard practice discouraged communication among parties in conflict, communication that I had used in my legal services cases, communication essential for efficient resolution. Many lawyers were playing a very different game from the one my natural instincts chose.
Yet, I was fascinated with how the most effective judges and lawyers understood people’s real concerns. They knew what to honor and what to respect. They knew how to frame situations and condition people’s expectations. They embodied a tradition that accommodated competing concerns and built consensus. Winning or losing was not the point of their work. Their game was resolution, and getting people back to their lives.
I had a similar orientation, and this orientation coupled with my belief that everyone had a lot to learn about conflict, focused me on trying to understand conflict, this pervasive aspect of life. Amid all the business and personal conflict, there was some clarity: we could do a lot better at managing conflict, and we could prevent conflict if we formed new business and personal relationships in a different way.
WHERE ARE WE HEADED?
In a recent interview, noted futurist Alvin Toffler, author of Future Shock, The Third Wave, and Powershift, stated: “The place we need really imaginative new ideas is in conflict theory. That’s true with respect to war and peace, but also it’s true domestically. The real weakness throughout the country is the lack of conflict resolution methods other than litigation and guns.” I agree with Toffler. Aspects of today’s conflict resolution system, and the way it is administered cause our current situation.
Given the many and increasing costs of conflict, and client demands for quick, effective resolution, it’s a good time for lawyers to consider a new model of professionalism. We have been operating in the adversarial “paradigm.” Given the high level of discontent among lawyers, and clients, we must find a better way. The question lawyers might ask themselves is “What will it mean to be an effective lawyer in the next millenium?”
Many of our most sophisticated clients are moving toward a more collaborative way of working together. Rather than lag twenty years behind the business community in adopting new business practices we will be well served by taking their lead, and getting beyond the adversarial model. We live in a world very different from the one that existed when the adversarial model was conceived. I believe it’s time to incorporate a truly collaborative style into the practice. We can keep compulsory process and the adversarial model for the most acute, difficult situations. This is an important backbone of our system. But I think we are all better served if the accepted standard shifted to an articulated collaborative approach.
The following premises are the foundation for my thinking:
Conflict is expensive. Only the rich or foolish can afford the huge cost.
Efficient conflict resolution requires a new paradigm – a new operational premise. I suggest a collaborative model grounded on ten principles.
Efficient conflict resolution requires a new systematic approach – a model that is applied consistently, and that reinforces the new paradigm through routine use.
The resolution of conflict returns people to productive lives and functional relationships – the place they want to expend their energy.
Settlement of a lawsuit is often characterized by thinking, “if both sides are unhappy, you probably have a good settlement.” Resolution is much better than settling! Resolution provides relief and completeness. The situation no longer chatters in your brain.
The most fitting definitions of resolution are (1) the act of unraveling a perplexing question or problem; (2) solution; and (3) removal or disappearance, as the disappearance of a tumor. The last is the most important. It means asymptotic – “as if it never happened.” The gnawing effect I call internal chatter has disappeared. The lack of chatter frees us to focus energy and attention on current activities. If you ever had a back injury, poison ivy, or a broken bone, you know what I mean. Something is resolved when the injury or illness does not impede your present moment’s activities. The effect may consist of holding anger or resentment, or thinking the result or compromise was unfair. Perhaps you compromised to get the situation behind you, or you deferred to someone else’s decision. This is important because you don’t want to keep dealing with the current drain of yesterday’s conflict.
For over 25 years as a lawyer, mediator, consultant and educator I have practiced a “resolutionary” attitude. Looking for the fair outcome from everyone’s perspective leads to resolution. Whether you are a hired advocate or have a personal stake in the situation, you can adopt an “attitude of resolution.” You can become an observer of what might be fair in the situation, even though you are involved. The attitude of resolution is a skill you can cultivate. I have found this orientation far more effective and satisfying than winning at any cost. And so have many others.
THE FIRST STEP: DEVELOPING THE ATTITUDE OF RESOLUTION
Within legal circles there is no shortage of talk about ADR. Alternative Dispute Resolution is the savior – saving us from client complaints about the cost and time it takes to resolve matters. Though a step in the right direction I am concerned because the various ADR processes – e.g., mediation, arbitration, early neutral evaluation – are fast becoming just another process to “win.” Much more important than “winning” is achieving an affective resolution. That will require a new way of thinking. As a young law student I did not know I was supposed to become an adversary and win my legal service cases. I thought my job was to reach an effective resolution.
The ten principles that follow reflect the values that make up the attitude of resolution. This attitude is a place of beginning, a critical first step. It is not enough to mechanically go through the motions of any process without first cultivating the attitude or mood of resolution. This will not happen at once. It will take time to change the way you think. The beliefs and patterns you have about conflict took a long time to develop. They are deeply imbedded 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 adverserialness 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 is not very helpful. The other side becomes demonized. As the battle escalates they become 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 the resolution can happen. Hiding behind procedure, or rules of evidence, does not help the catharsis 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 & INTUITION – As lawyers our conditioning is that our primary means of analysis is logic. Resolutionary’s 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 will also 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 that we base our advice on.
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. Resolutionary’s 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 – Resolutionary’s understand that their goal is not to win at all cost but to share information and discover what 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. They 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. They immediately look for the person who will take care of “it” for them. Resolutionary’s 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 there own conflict, and in the process discovering and experiencing there own character.
EVALUATING A SITUATION – THE RESOLUTIONARY WAY
A few years ago I was helping a colleague resolve a difficult situation with his former company. At the end of the process he called me a “resolutionary.” I have appreciated the epitaph. I would like to share what resolutionary’s do, and the competencies they embody. I gained this insight from reflecting on the way I approach situations, and the validation gained from over 100 interviews with senior conflict resolution professionals I consider resolutionary’s.
When a matter is presented Resolutionary’s ask themselves the following questions:
Who has what concerns? What is each person’s reality about the situation? – They stand in everyone’s shoes to enable them to 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 needing immediate attention? – They are concerned with other’s 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 and in the process you become collaborators and teammates.
WHAT A RESOLUTIONARY EMBODIES
Resolutionary’s carry the following qualities and abilities. If you aspire to being a resolutionary it’s time to start cultivating these qualities.
Collaborative – they treat everyone respectfully and are always open to learning
Common Sense – they make the complex simple
Confident – they know the value they contribute; they act on their assessments
Creative and Innovative – they design what they need to get the job done
Empathetic – they have compassion; they honor and legitimize everyone’s concerns
Fair – they understand that tomorrow is another day; winning is not everything
Faithful and Trusting – they know the situation will be resolved
Generating Openness – they create trust and the presence for people to open up into
Getting to the Core – 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 have awareness of what’s really going on
Judgement – 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, they hear what’s not said
Maintaining Control of the Process – they know process is integral to resolution
Open-minded – they are not committed to a particular resolution
Practicality – they will try whatever works
Taking Care of People – they know it’s always a relationship problem.
Tolerance for Conflict – they remain centered, grounded and fair in the storm
ADVOCACY or ADVERSARIAL:
KNOWING THE DIFFERENCE
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 would all be well advised to read the best seller Everything I Need to Know I Learned in Kindergarten.
Resolutionary’s support clients in taking personal responsibility. They understand that involved individuals can go to the core of the conflict – the breakdown in relationships. While lawyers often avoid the real concerns because they shift the focus to the legal issues, resolutionary’s are clear about the real value they provide. The core competency of the resolutionary is their ability to lead people to a new vision that returns them to the real business of their life, without the ongoing internal chatter of continuing conflict. Their job is to lead you to resume collaboration and more effectiveness. The solutions of the resolutionary reestablish the working relationships that are essential for business, family or governmental activity. They provide options that contribute to the present and future quality of your life.
BENEFITS – THE UPSIDE POTENTIAL
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 loose, 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 for 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. The railroads failed to realize they were in the transportation business and it took them a century to recover. Swiss watchmakers are still suffering from their missed opportunity. BQ–Before Quartz–the Swiss held about 95% of the market. In the early 1960s the Swiss R & D people presented their innovation, the quartz movement, to the barons of the industry. The barons could not see the innovation. It did not have a mainspring, moving parts, or jewels. It could not possibly be a timepiece. The Japanese saw it. The rest is history.
I am hopeful, not because I am an incurable optimist, but because I keep seeing evidence of a growing trend. The ABA is publishing a book called Transforming Practices written by Steven Keeva, an accomplished senior ABA Journal editor. He shares the stories of lawyers from around the country whose practices work for them through honoring traditions more central to their own lives. These people demonstrate the noble calling of the law many of us have forgotten.
Another brilliant call to arms is Synchronicity by Joseph Jaworski, son of Watergate Special Prosecutor Leon Jaworski. The message of Joe’s book, an eminent lawyer in his own right before dedicating his life to the study and fostering of leadership, is that it is up to each one of us to have the courage to find, and follow our calling.
We each have the power to create the future we want. I hope I have provided some options. I challenge you to take your complaints and turn them into solutions. See you in the next millenium…
Whatever you can do, or dream you can, begin it. Boldness has genius, power and magic in it.
Stewart Levine is a recovering lawyer and the founder of ResolutionWorks. He is the Chair of the Law Practice Division of the ABA Section of Law Practice Management. You can reach him at [email protected] or www.ResolutionWorks.org.