Growing acceptance of mediation and other consensual processes is allowing lawyers and their clients more readily to reach resolutions that avoid the risk and prohibitive cost of a trial. Many cases still drag on too long, taking on a life of their own, only to be settled out of exhaustion, with relief and resignation, on the eve of trial.
Why does this cycle keep repeating itself?
- The core reason is the intrinsic tendency of conflict to escalate once it is underway. The investment of time, psychic energy and money breeds an almost inevitable loss of perspective and objectivity. As the dispute escalates, reasoned, constructive negotiations become increasingly beyond reach.
What can be done?
- One key solution is found in taking are at the very beginning of a dispute will enable the disputants to (1) protect and advance their legal rights while (2) create opportunities for interaction and discussion that allows a focus on interests that must be met for a mutually satisfactory resolution to occur.
- Neuroscience (not at all far-fetched in this context) tells us that the “away reflex” (i.e., keeping the other side at a distance; pushing them away; they are “the other” and not part of our group) is stronger than the “toward reflex” (i.e., they are safe; they are one of us even if we disagree). The innate dominance of the “away reflex” makes escalation instinctive and the clear path of least resistance, by which the parties become further polarized, and the chance for a positive, negotiated resolution recedes.
- So, at the outset of a dispute, consider implementation of processes that will allow for positive, even informal, interactions with the opposite party that will diminish escalation rather than promote it.
- No early concessions need to be made to get this underway.
- Focus on interests and objectives within the dispute and design resolution processes–straight mediation being only one option–tailored to achieve those.
- Devote resources normally spent on posturing and parrying, which are costly and most often do not contribute to improving the result, to some form of “social process”, creating opportunities for a real exchange of ideas between both counsel and the parties. Through these processes, disputants can see the opponent not as “the other” whose interests and positions are antithetical to their own, and discover mutual interests and goals that uncover value and common ground that leads to a settlement not attainable by other means.
- Do not underestimate the value of a third-party resolution professional, particularly at the early stage of a case, who is skilled at developing and guiding this kind of interactive approach. Such assistance can make a significant difference by moving the case through barriers of like-minded group dynamics and confirmation bias, which are powerful forces that fuel escalation and impede resolution.
Thus, the solution to the natural tendency toward conflict escalation is straightforward: understand that process design is as vital at the beginning of a case as fact development and legal analysis and should become a universal element of case strategy. Parties can initiate and implement the most effective processes by engaging a third party resolution professional. Attorneys and their clients can find means of resolution that protect legal rights through processes that directly advance their business and economic interests.
Any initial expense is outweighed by faster, less costly and better results, with greater control over process and outcome—all key to increasing client satisfaction and loyalty, as well as a lawyer’s reputation for excellence and client-centeredness. Skillfully designed processes create value and improve outcomes without the exhaustion and disillusionment of prevailing practice.