Dispute Settlement Counsel

What do Abraham Lincoln, Mark McCormack and Jesus have in common?

They were all respected counselors in their time and pointed out the advantages resolving disputes quickly and efficiently.

Today, I happened to check back with a book I hadn’t read for years: The Terrible Truth About Lawyers, by Mark H. McCormack, a lawyer who is better known as the founder, CEO and Chairman of the International Management Group.  Written in 1987, it was given to me by a relative while I was in law school in 1988.  I read it eagerly then, and hadn’t gone back to it since.

In the interim, my legal career began prosecuting child abuse cases in Westchester County, NY, then litigating all kinds of cases in New York and Massachusetts for the better part of the next two decades. In the process, I crossed paths with processes like Collaborative Law, mediation and ombuds services, getting trained and gathering experience in each and developing an part of my practice in Preventive Law.  As I got on in counseling and representing clients, I’ve come to know that they are best served when we help them prevent disputes from ever arising.  When conflicts do arise, we provide value when we help them work through and resolve disputes effectively using methods best suited to their situations and interests and that are cost, time and resource efficient. 

McCormack’s book views things through a businessman’s lens as much as from a lawyer’s perspective.  I found insights that reinforce what proactive, preventive, collaborative lawyers do in counseling and serving their clients.  Here are some, written over 20 years ago, that strike strong chords today, especially in an economy that is moving us toward rethinking how we spend out time, money, resources and energies.

McCormack pointed out that often, “the lawyer’s natural context is one of conflict, while the business person’s nature is one of mutual advantage.  Letting matters drift from the latter to the former is asking for ill will.”  So for a lawyer to be able to truly help a business person when he or she is in a dispute, in addition to being an advocate for the client’s rights, the lawyer and the client must also stay focused on the mutual advantages to both parties in the dispute, rather than escalate the conflict.  “In savvy negotiations, two plus two can sometimes add up to five.  This is called synergy.  It’s also called the effective way of doing business,” McCormack concluded.

The book also points out that often in litigation, too much cost and time is spent because of things inherent in the process, like runaway discovery, motion practice and appeals.  One astute observation is one that clients often realize too late:  “The longer a dispute continues, the less it is worth.”  Business people need to maintain healthy relationships.  McCormack notes, “business people, by and large, don’t like to hold grudges.  And one of the worst things about lawsuits is that they make conflict a habit.”

Abraham Lincoln pointed out the same realities in urging lawyers to “discourage litigation” and advising clients that “the nominal winner is often a real loser – in fees and expenses and waste of time.”   Lincoln words were not lost on McCormack, who noted that Lincoln encouraged conciliation among neighbors and urged lawyers to be preventive lawyers; a lawyer has a “superior opportunity” to be a “peacemaker”, Lincoln observed.

Urging increased use of alternative dispute resolution (“ADR”) and working toward early resolution of disputes, McCormack echoes the advice that came nearly two centuries before us, in Scriptural references from Jesus and St. Paul.  In the Sermon on the Mount, Jesus counseled his followers:  “Settle matters quickly with your adversary who is taking you to court.  Do it while you are still with him on the way (i.e. while you still have a relationship), or he may hand you over to the judge… I tell you the truth, you will not get out until you have paid the last penny. “  (Matthew 5:25-26)

The good news is that not all the truths about lawyers are terrible.  In fact, most of those I have met, litigated against, resolved cases with through mediation, collaborative law, or other ADR-based approaches, are of the highest integrity and among the finest people I know.  Like any other tool, the law can be used to achieve positive, creative and responsive results or can be abused.  When lawyers and clients proactively and affirmatively choose to use it for good work, the results can be inspiring.

Young law students aspire for and seek that higher purpose; so do those who look to lawyers with hope to help them solve problems.  The person who gave me the book inscribed it:  “We look forward to the day that you will offer those you serve the wonderful truth about lawyers.”  Even those like St. Paul, often seen as skeptical about the law, viewed it in a positive light (1 Timothy 1:8):  “We know that the law is good if one uses it properly.”  Likewise, Oliver Wendell Holmes, Jr. observed a century ago:  “The law is the witness and external deposit of our moral life.  Its history is the history of the moral development of the race.”

So today, as then, the call goes out to lawyers and clients alike: Let’s use the law well and for good purpose.