s

Tag Archives: conflict resolution

Is the High Cost of Conflict Affecting your Company's Bottom Line?

BY: Pamela Large-Moran

Unresolved conflict can be very costly to a business or organization. Conflict is inevitable. It is a fact of life. The key, however, is in how you deal with or manage conflict. Conflict when managed properly can be an impetus for positive change and the basis for satisfactory continuing future relationships.

Internal/Workplace Conflict

There are generally two broad areas of conflict that a business or organization may encounter. The first type is Internal Conflict. This involves disputes between and among employees, between employees and management and between management/partners/shareholders.

Here the relationship between disputants is a crucial element of the dispute. The cost of this type of conflict can be quite significant. Unresolved conflict of this nature results in poor morale, low productivity, sickness and absenteeism, disgruntled employees, lawsuits and ultimately results in the business or organization not achieving its goals.
According to the “Dana Measure of the Financial Cost of Conflict” unmanaged employee conflict is the largest reducible cost in organizations today. Over 65% of performance problems result from strained relationships not from deficits in individuals’ skills or motivations.

Internal Conflict Resolution Processes/Systems

Establishing an effective internal conflict resolution process or system in your business or organization can prevent recurring conflict, conflict escalation and puts in place effective procedures for resolving conflict that does arise. The main goals of a conflict resolution system are to reduce time and costs involved in resolving conflict, improve or maintain relationships, deal with emotions, create satisfactory outcomes and avoidance of future disputes.

Communication issues are often at the heart of disputes and often times constructive communication processes can be the key in dealing with disputes. There are many communication skills and strategies that can assist in disputes. As well, there are techniques for working with and responding to difficult behaviours.

External Conflict

The other area of conflict a business or organization may encounter is External Conflict. This is where disputes arise between a business and outside third parties such as suppliers, creditors, clients or customers. Individuals or companies you do business with in one way or another.

There are a number of alternative dispute or conflict resolution processes for dealing with External Conflict . These processes are less expensive and speedier than the litigation/court process. Further, these processes can repair and preserve valued business relationships which is an important consideration with External Conflict. Litigation with its adversarial approach destroys relationships and can result in unsatisfactory outcomes.

Alternative Dispute or Conflict Resolution Processes

ADR or Conflict Resolution Processes include: Interest-Based or Principled Negotiation, Mediation, Facilitation, Mediation/Arbitration (Med/Arb) and Arbitration. ADR processes can be built into agreements up front or agreed to between the parties at any time.

The two most widely used ADR processes are Mediation and Arbitration. In Mediation, disputing parties engage a qualified, neutral and impartial 3rd party (the Mediator) to assist them in reaching their own mutually satisfactory resolution. The Mediator has no decision-making power but provides structure for negotiation, impartially listens to both sides, works with the parties to clarify issues, identify interests, facilitate understanding and dialogue, generate and decide on options for resolution.

The many benefits of Mediation are that it is cost effective, expeditious, voluntary and informal, private and confidential. Mediation also is less stressful and takes less of a personal toll on the parties, and results in more creative and tailored solutions resulting in increased party satisfaction. Mediation works! Studies in Canada and the US have shown that approximately 80% of cases mediated settle on the first day with an additional 10% settling within a month of the Mediation.

Arbitration is a rights based process where a neutral and qualified 3rd party hears evidence, makes determinations of fact and/or law and comes to a decision on the issues. The Arbitrator’s decision can be binding or non- binding, depending what the parties choose.

You can protect your business from the high cost of conflict by having processes in place to constructively deal with Internal Conflict and also minimizing costs of External Conflict by being aware of and using ADR or conflict resolution

The Skill Set of a Co-operative Problem-Solver

BY: Pamela Large-Moran

Value Added For Clients

The legal landscape has been undergoing significant change over the past few decades brought about as a result of concerns over the high costs of litigation, backlogged Courts,a tendency toward court – mandated mediation and judicial settlement conferences.

As a result, clients’, both institutional and individual, needs and expectations have changed. They are looking for their lawyers to be problem-solvers – lawyers who are not only competent and well versed in the rights-based adversarial legal system but also have the ability to be collaborative and solve their problems thus avoiding expensive andprotracted litigation. Clients are looking for value from the legal services they engage.

Clients’ demands have expanded to include expectations that their lawyers have the skills to negotiate co-operatively and an attitude and mindset conducive to effectively and efficiently resolving issues. Thus, this requires an expanded role and skillset for lawyers and a broadening of the culture in which lawyers work and interact.

The traditional role of the lawyer – that of a zealous advocate and competitive negotiator does not fit every type of dispute or problem. As client centered, collaborative processes are becoming more commonplace in the legal arena, clients are seeking lawyers who can go beyond the ability to look at issues logically and in a rights-based fashion, think outside the box and assist in tailoring creative, mutually satisfactory solutions.

The Litigation Culture

This change of mindset can be challenging for lawyers. After all, the culture and norms
of lawyers are comprised of a number of drivers that influence and reinforce adversarial
values. This begins with legal education and training with its rule orientation based on
the adjudicative model as well as the highly competitive and individualistic law school
environment.

As well, the adversary system itself with its positioning and aggressive competitive
strategies and tactics, aggressive adversarial negotiations and lack of information sharing
reinforces these values. Further, the structure of law firms tends to be hierarchal in
nature and highly competitive.

These drivers, accordingly, make it more difficult for lawyers to take on this enhanced
role of a co-operative problem-solver.

Effective Problem-Solver Skill Set

What does it take? Seven Important Steps.
1. Appropriate Case Selection – The lawyer should have an openness to collaborative problem-solving processes. This begins with recognition that the adversarial model of dispute resolution does not fit with every dispute and that there are many disputes that may be better suited to an alternative approach to resolution. Hence an early appraisal of whether such a process is an appropriate alternative to adjudication given the client and the particular circumstances of the
case is necessary.

2. Client Education – It is critical that the lawyer inform and explain to the client the particulars of the problem-solving process so that the client gains a good understanding and a willingness to put in a good faith effort towards resolution.

3. Preparation – It is important that the lawyer has a good understanding of the case including the evidence and legal issues and is clear about what is negotiable. It is also important that the lawyer pays attention to the other party’s needs and
expectations.

4. Adopt a Collaborative Role – It is essential that the tone and mindset of the lawyer is conciliatory and collaborative with a view towards joint problemsolving.

An orientation of understanding not only the client’s own needs and concerns but the needs and interests of the other party is essential. Understanding what is driving the dispute from the other side’s perspective is also useful as well as a willingness to approach a collaborative negotiation process in good faith and with a constructive attitude.

5. Communication – This is vital to the process and entails different communication and listening skills that might otherwise be employed. Good communication skills require the ability to speak effectively, listen with understanding as well as an information sharing ability to empathize and build rapport with the other party.

6. A Shift in Control – This involves a shift from a lawyer-centered approach to a client-centered approach where the client is empowered in the process and plays a key role in the discussion and decision making.

7. Creative Problem-Solving Abilities – These abilities are crucial to the process and involves the lawyer thinking outside the box of traditional remedies and solutions to a broadening of the options generated for resolution.

Conclusion

All across the country, lawyers are seeing demands from their clients to be problemsolvers. If lawyers were trained to consider the possibility of cooperative resolutions tailored to the needs of all parties, this would greatly enhance their services and value to their clients. The suggestion is not to completely abandon litigation and adversarial representation but to add more cooperative dispute resolution mechanisms and styles to the lawyering toolbox.

These additional skills need to be ignited through training and lawyers’ attitudes broadened through education in the area of collaborative problem-solving and negotiation in order to enhance lawyers’ value to their clients.

Pamela Large-Moran is a former Toronto litigator who now provides services and teaches in the area of conflict resolution. She is the principal of Conflict Resolution Services (CRS) Atlantic. She obtained her LL.M (ADR) from Osgoode Hall Law School and is
Vice-President of the ADR Institute of Canada.