situational dispute resolution

What happens when you don’t do what the situation calls for…? (whether resolving disputes or coaching the Patriots in the Super Bowl)

Michael Zeytoonian Perspectives

Every year, the Super Bowl provides us with great lessons and a great game. This year was no exception as the Patriots and Eagles played in an exciting shootout that literally came down to the last play.

But the game’s outcome may have been decided by something other than who had the last chance to score. It’s easy to be Monday morning quarterbacks and go through the succession of “if they had done that, then..” or “If this didn’t happen, then …”, and we don’t know and may never find out all the relevant facts behind Coach Belichick’s controversial decision. But Patriots fans were still wondering why the starting cornerback for the past two years, Malcom Butler, did not play. That question arose in the second quarter of the game as Pats’ fans everywhere were texting and trying to will Belichick to “put Butler in the game” as the Eagles continued to shred the Patriots’ pass defense in the second half.

There were several explanations for why Butler didn’t play – missing practices due to illness, having bad practices and missing curfew. We know the highly effective “Patriot Way” calls for strict adherence to rules, and accountability for those who don’t follow the rules. Several great players are no longer on this team for reasons that have nothing to do with their athletic abilities. Patriots’ fans respect the strict discipline as a contributing factor to the team’s incredible success; “In Bill we trust” is a fan mantra.

But what happens when two key principles conflict? In this case, situational football vs. consistent, strict application of team rules.

Coach Belichick frequently talks about playing situational football, i.e. preparing for and effectively responding to what the situation calls for in any game or part of one. Every game situation is different and requires an approach that is right for those unique circumstances. You prepare for the Eagles differently than how you prepared for the Jaguars, and your second half plan may be adjusted based on what you saw in the first half.

It was clear by the end of the second quarter of the Super Bowl that the Patriots’ pass defense, solid in the second half of the season, needed adjustments. The noticeable difference was the absence of cornerback Butler, who stood on the sidelines ready to play but apparently being punished. We found out days later what the problems were and may never know the whole story. Based on what we do know, the situational adjustment would have been to shorten the punishment to one half – message delivered – and get Butler into the game in the second half. That did not happen, the Eagles moved the ball at will – mostly through their passing game, scored an unbelievable 41 points and won.

It is speculation whether Butler playing would have changed the outcome and the Patriots would have won the game. But given Butler’s track record, especially in Super Bowls, it was a reasonable conclusion that Butler playing in the game would have made a difference. We’ll probably never know, and also never stop wondering “what if…” My brother is still wondering why Ellis Hobbs was in single coverage on Plaxico Burress… 10 years later!

This conflict of principles applies to resolving disputes as well. There is often a conflict between what drives those involved in disputes – lawyers and clients alike – to take the actions they take. One of these urges the logical, rational assessment and approach: Given the situation and the factors involved in any particular dispute – and each one is different – choosing the right process to use to achieve the best result is critical. That guiding principle is often at odds with the client’s desire to satisfy his/her emotional needs – the need to win, to beat the other side, to prove them wrong, to grind them into the ground and make them pay, to get one’s “day in court”, to even the score, etc.

Situational dispute resolution and choosing the right approach for the dispute is also often at odds with the lawyer’s desire for financial gain as well as the need to do what he/she does and wants to do. Litigators want to litigate; mediators favor mediation as the best way; Collaborative Lawyers want to use Collaborative Law; businesses that always arbitrate want to go to arbitration. We tend to revert to our default position, what we are comfortable with, rather than be guided by what is best for the situation, especially when the process that is the best fit is not in the lawyers’ financial interests.

If disciplinary rules on sports teams serve the purpose of preparing them to play at their highest level and put the team in a position to win, and winning the Super Bowl is the ultimate goal, then a disciplinary rule must serve that goal but not be followed so dogmatically as to get in the way of it. If a team’s purpose is building character, teamwork and shaping quality human beings, and the games – including the Super Bowl – are vehicles for helping players reach that end, then enforcing the rule strictly may override the need to win the game. If that is that is the ultimate purpose, it is noble; just let the fans know that up front!

The driving and guiding force in dispute resolution is that which will best satisfy the clients’ interests and needs and help them reach their desired goal. Reaching that goal calls on us as lawyers and dispute resolution professionals to be situational, make adjustments, get out of our comfort zones or abandon the “this is the way we do it” thinking.  When we are faced with that conflict of what to do, it’s important to remind ourselves which of these conflicting principles serves the other.