Return to civil and pragmatic conflict resolution

Conflict is inevitable. Conflict will come if you don’t deal with it today. Conflict is not to be feared. It can even lead to innovation and strengthen relationships.

Unresolved conflicts, on the other hand, can lead to a formal dispute, which is time-consuming, expensive, and distracting. To limit conflict, it is sensible to take aggressive or reasonable steps.

But the realistic expectation shouldn’t be to ignore it. Despite the fact that conflict can occur at any time and for any reason, we are always in control of how to resolve it. The process of conflict resolution is a mess.

Two trends in the area of conflict resolution are worrying. First, there seems to be a shift in the culture surrounding conflict. We are seeing not only a general lack of civility being normalized but also a heightened intellectual ego when we disagree about anything—I am right, you are wrong, and there is nothing in between. This type of conflict is now acceptable and often rewarded.

In any forum – be it legal, political, or social – if a conflict becomes hostile, and sensationalized, we seem to be more drawn to it. The public is obsessed with antagonistic conflicts and the immature, sometimes abhorrent behaviors that occur within them. We’ve even seen “fans,” cheering for their favorite litigant, outside the courtroom. Marcus Aurelius, the former Roman Emperor, said: “Are not you entertained?”

Second, the number of meaningful dispute resolution attempts outside of traditional, formal proceedings is declining. Good-faith talks, with or sans counsel, as well as the use of mediation, are now viewed by many as either a quick contract requirement or an inconvenient forerunner to the real fight. In recent years, more parties have jumped into formal disputes with full force and aggression. They also celebrate each Pyrrhic success along the way in public through press releases or social media.

The parties that come together with a genuine desire to resolve their differences amicably and a commitment to civilized advocacy seem to be the exception rather than the rule. We are more focused today on winning rather than resolving. In short, compromise is now seen as a sign weakness.

These trends lead to a loss of time, focus and money for clients. After bitter, unresolved conflicts, business partnerships break down, leaving entire industries unfriendly and uninterested to work together for the greater good. Employee-employer relations become more accusatory and lack trust. Organisations and people lose focus and their mission.

Relationships are not just broken, but they are permanently damaged by the trail of messages, direct texts and posts. For lawyers, these trends are no better. They have a worsening reputation and promote the idea that lawyers do not solve problems but are hired combatants.

It’s time for action to reverse these negative trends. Before we can do that, let’s be honest about where we are. We didn’t do anything wrong. The legal community is the source of this problem. It’s not the client’s problem. We are willingly participating in the actions or inactions of those who created and perpetuated this trend. What now?

Everyone in the legal profession, whether you are an in-house counsel or an external lawyer, can and should play a part in ensuring a peaceful, efficient, and pragmatic resolution of disputes.

We can all improve our lives by taking the following steps:

Rooted in civility

One would think that this is not a controversial issue. I suspect most will claim they are civilized. Here we are. We use the old argument “I didn’t start it” as a defense for our occasional incivility. We are no better if we respond with a punch, which then becomes contagious. Knowing the difference between responding and reacting is essential to civility. We can choose not to react and instead always respond with thoughtful, relevant responses.

Control your client

Yes, this is a thing. Both in-house and outside counsel have the power and responsibility to set a tone for all parties involved in a dispute process. Be clear and vocal about your philosophy of conflict resolution with the client. If the client desires a scorched-earth, uncivil approach, counsel the client on the potential impact—time, cost and possibly a damaged reputation in the market. Or, have the courage to say: “That is not how we do things.” There’s always another client around.

Commit yourself to pragmatism

“Pragmatic”, /prag’madik/ is an adjective meaning: “Dealing realistically and sensibly, based more on practical than theoretical considerations.” As a profession, lawyers are prone to getting bogged down in technical and theoretical arguments. Although it may be tempting, we owe our client a duty to resist the temptation to take an academic approach to resolving their conflict. Ask: Does this argument, or position, further the resolution of the dispute or the dispute itself? Academics and theories have their place, but a professor will never have a client. Let’s stay grounded with pragmatic solutions and avoid the professorial approach.

Rethinking the concept of alternative dispute settlement

It’s about time we put the “ADR”, or alternative dispute settlement, back in “ADR.” The expansion of rules and regulations has often made “alternatives” no different from the formal litigation they were intended to replace. Arbitration, particularly when using behemoth firms is now highly regulated. This makes the process equally time-consuming, and as expensive, as litigation.

Arbitrations are no longer “alternatives”, as they were originally intended to be. But lawyers did that—we overengineered the system, even if well-intentioned, and slowly eroded the underlying purpose. Most arbitration firms are almost exclusively staffed by retired judges and litigators. They are performing the exact same service in the same way as they did it in the courtroom. So why should we expect them to be champions for the alternative?

Why not instead seek out neutrals such as former GCs, executive and other subject matter specialists (HR, finance, contract) who could bring a more pragmatic view of the underlying conflict? This would bring some “A’ back to the “DR.”

Commit to mediation

Re-examine your contract templates. They likely all contain a mandatory arbitration clause. Consider requiring mandatory mediation as well. Then, really lean into the process of mediation. Mediation is the most pragmatic, cost-effective and amicable method to resolve disputes. Why isn’t Plan A always the first option?

There are many more, but this list is a good place to start. Perhaps it will help us find a solution to the current situation of expensive, divisive and unnecessarily complicated dispute proceedings. Conflict is inevitable and will always be present, but we have the power to control how it is resolved.

Maybe we can gain a reputation for being problem-solvers if the legal community reinvents its resolution process. Let’s seek out real alternative options, control intellectual egos, lead with respect and view compromise as a worthy goal. Then, we will return pragmatic conflict resolution.

Scott Chaplin has worked as a chief legal officer in public companies for more than 20 years, across a wide range of industries including technology, life science, defense and national safety, consumer products, retail, and manufacturing. He has also worked as chief human resource officer, board director and arbitrator/mediator. accepts queries for original, thoughtful and non-promotional articles by unpaid contributors. These will be published in the Your Voice section. Details and submission instructions are posted on “Your voice, Your submissions.”

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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