Conflict-resolution without litigation

Conflict

Is all conflict bad? Absolutely not! Within your organization, you do not have innovation or improvement without going through the process of conflict. However, conflict may lead to disputes, and disputes lead to breakdowns within organizations. Left to fester, disputes lead to destruction and, in many cases, a trip to the courthouse. If you are in court, a conflict has escalated to the level of a dispute. And, whenever you are in court, unless you are a lawyer, you are not generating income.

Differences among individuals as well as basic human nature cause conflict. Individual differences could be as simple as male-female relationships and the four personality types, or as complex as differences in religious beliefs (greater than 4300) or languages and dialects (more than 33,000). Basic human nature, including greed, selfishness, laziness, pride, etc. as well as resulting broken business processes, also lead to conflict. If not avoided, this type of conflict must be managed as a dispute.

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 not resolved internally, the parties may seek assistance using an external mediator or arbitrator. Beyond those alternatives, the path toward the courthouse becomes quite evident.

But now, there is another alternative; Civil/Commercial Collaborative Law. This process fills the void between one-on-one discussions and involvement of an outside referee. Collaborative law gets you away from the courts and back to business. It uses a defined process to achieve "settlement by agreement." That means no (or little) court intervention.

The Collaborative Process

The Collaborative Process has its roots in Family Law where the most important goal is to maintain relationships, even though spouses may go their separate ways. There, even after a divorce, relationships continue due to children, relatives, and history. In business, one may say, "I do not care about one customer or one supplier, there are plenty more where they came from. Let's just go to court." However, other current and potential customers and suppliers are watching to see how you handle yourself. Relationships preserved through the collaborative process extend beyond the immediate dispute and are actually strengthened because of the resolution process chosen.

Assuming there is no culture of conciliation within the business, or for some reason it failed, before being forced into court-ordered mediation, arbitration, or litigation, management should consider the Collaborative Process.

What are the steps in the Collaborative Process?

First, because it is a voluntary process both parties must agree to go through it. The process is not suitable for all disputes or all parties. Some need to be directed to other resolution methods. However, once the issue and the parties are properly screened, the process may proceed.

Second, both parties need to find trained attorneys; not litigators, but lawyers who are interested in avoiding conflict, managing conflict, and assisting the parties in resolving disputes. The best Collaborative attorneys for business disputes, in my opinion, are those who have years of business experience. You will want to find someone who has been in the business world and who has resolved conflicts within organizations and between organizations. You want to have an advocate for your business, not just a hired gun.

Next, a face to face meeting is convened in which an agreement is signed. The agreement sets forth the process. A schedule of meetings is prepared, and an agenda is set for the next meeting. Typically, meetings are only two hours long and everyone has homework for the next meeting. The parties, rather than the courts, 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 parties participate directly without filtering by attorneys.

During the process, a need for more information will no doubt arise. Documents and other information may be necessary. Unlike litigation, all parties cooperate in compiling the information. The data is shared in the meetings. The information gathering is informal. 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 cannot address an issue, that portion of the discussion may be handed over to a mediator or arbitrator - but the parties still maintain control. The experts are controlled.

After all the relevant facts are gathered, the parties work on various solutions to the problem. Options are listed and discussed. This brainstorming step is very important and should never be shortened or bypassed since it provides an opportunity the parties would never have in court. Only after all possible options are tabled do the parties come to a solution; not necessarily their original position, but rather a solution that addresses their interests. A In this step, the Parties are free to brainstorm and dig into underlying interests.

Finally, the results are realized. An agreement is reached without going to court. Ongoing relationships may be maintained. Costs are typically less than using the litigation path. Private matters are kept private. And, satisfaction is achieved through control of the process.

Collaboration vs. Litigation

Let's take a look at 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. 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 will 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? Nearly everything in the case will be part of the public record. Do you wish to read about your business on the front page?

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 inexpensive expert to testify in court. Should the parties really have to hire two experts who 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?

After all the preparation and all the testimony, 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.

Given all the benefits of the Collaborative Process, 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, 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? Has your attorney proposed language for your contracts to support the collaborative process?

Remember, conflict resolution is not just a process, it is all about relationships. Build and maintain strong relationships internally and externally and your business will be able to weather the storms of conflict.

David Calkins has more than two decades of legal and business experience. He currently advises businesses as well as start-ups. David is an Attorney, trained mediator, civil collaborative law practitioner and dispute resolution manager. He bridges the gap between Business and traditional Legal services by providing a practical business viewpoint to legal and quasi-legal issues. He has held various management positions where he directed the activities of, and provided counsel to, departments focused on supporting revenue of $1.4B. He has provided expertise in the areas of channel strategy and implementation, web based contracting, gray market investigations and initiatives, channel recruitment and development, anti-trust compliance, and sales force support. David holds a JD and MBA from St. Louis University, a BS in Business Administration from Lebanon Valley College and has been admitted to the PA, TN, and TX Bar. ([http://davecalkins.com])