Dispute Settlement Counsel

(last in this series of seven)

Last week, in discussing the value of confidentiality in dispute resolution, we noted that companies, organizations and individuals in disputes are not often motivated or focused on things like respect, civility, empathy, equity, fairness or just being gracious in our dealing with the other party to the dispute. In fact, some lawyers and some clients view the consideration of these notions as a sign of weakness and urge clients to just stick to the facts and the law.

The truth is, these elements go a long way toward creating a better environment for negotiation, establishing some trust, and ultimately reaching a more complete and lasting resolution.  Further, they are often at the core of those interests that are important to parties involved in sexual harassment, discrimination, medical error or family business disputes, along with the need for their views to be heard and considered, and the need to change a flawed workplace culture.  

In our proactive training workshops on preventing sexual harassment or discrimination, we suggest that people in the workplace set a high standard for themselves and their companies.  We urge that company policies and individual behavior go far beyond the legal standards and use this standard for measuring their actions:  Assume that whatever you are about to do or say in the workplace is going to be front page news in the New York Times tomorrow;  if you are comfortable with that public disclosure, then go ahead and do or say what you had in mind.  If not, maybe you should stop and rethink your action.

If we all operated that way, many claims and lawsuits would be prevented.  It is often because many companies, business entities and non-profit organizations don’t operate at a heightened standard that disputes arise.  Since it was the absence of these human and necessary elements that often helped create the conflict, it is only logical that the introduction of them into the dispute resolution process is a key ingredient for solving the problems.

You would be amazed at what the introduction of a little civility and respect can do for a negotiation, how deftly these elements can often diffuse a situation, or create what Dr. Dudley Weeks refers to as the “conflict partnering process” (footnote, Introduction, pages xii-xiii). They help to transform a charged-up, tense and adversarial dispute into a positive and creative collaborative negotiation process. They set an important tone for going forward. In when they model that behavior, the parties often adopt the same disposition toward each other.

In being respectful and civil, lawyers do not cease from being zealous advocates. Nor do they ever lose site of their role of protecting their clients’ rights. They just help to shift the paradigm from focusing on the past to the present and future, and adjust the rules of engagement from attacking to seeking common ground to build upon.

Even the best and most effective litigators have usually mastered the ability to “respectfully disagree” or to “agree to disagree” with their lawyer counterparts. It’s essentially a way of sending a message that there are no white flags being thrown out, but we can agree to put our guns down for a while, sit down and focus on satisfying interests - both those of our clients and those of the other party in the dispute. That one act of respect can be the catalyst, sending a modeled message to the clients and setting the tone for a reasoned, successful negotiated resolution.