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Lawsuits and arbitrations often sort out disputes in their legal sense. They rarely sort out disputes in a satisfactory personal or financial sense. Anyone familiar with the litigation and arbitration process can tell you about how unsatisfactory the result was in most instances. They cost a fortune.
Think of the legal fees. Think of the administrative costs (court reporters, expert witnesses, transcripts, travel, and the value of company resources wasted in the process). Think of how little you achieved compared to what you hoped to achieve. Many people come out of the process glad that they did it. More do not. There are better ways to manage disputes. In fifty years of law practice I have learned how to avoid them rather than embrace them. The difference is incredibly better.
In any business context people can begin to become unhappy with their relationship. The reasons for that are almost endless. The buildup of every full blown dispute began substantially before it came to “lawyering up” and the end of it came long after. A large part of the reason is that people naturally seek to avoid confrontation. They don’t want to deal with it. It isn’t high on anyone’s list. And so in most instances it gets worse rather than better. Positions are taken that are defensive in the confrontation sense – what if we come to blows kinds of things. People write things, memos, emails, instructions that make matters worse rather than better. Months and sometimes years are spent in mutual distrust (to put it nicely) and people do all the wrong things, like send each other accusatory emails and far worse.
The value of whatever the relationship may have been intended to be in the beginning is lost, at least to one side of this, but it keeps on going, more weed than flower.
That’s how conflict and dispute management usually works. Anyone in business for a long time has probably experienced some or all of this. Not everything we do works out the way we intended. How can we change the way this is traditionally handled so that the length of its infectious presence is minimized and its cost greatly reduced?
Are there some situations in which this simply will not work? Of course. Nothing works in every situation. Want an example or two? OK.
Think of an over the hill or “very” mature franchise company with franchisees departing or about to depart who do not intend to comply with the post term covenants not to compete in their franchise agreements. The typical company position is that any departing franchisee that seeks to avoid the covenant not to compete must be financially destroyed or every franchisee in the system will leave. The view is that this is do or die with no middle ground. I have seen this dozens of times and made a lot of money over the years trying these cases. As the outside trial lawyer I know that I have been called in later rather than earlier and that all heels are by now fully dug in. If I were even to suggest compromise at this moment I would be removed and a more tractable trial counsel retained. If I win the lesson is taught and the non compliant departing franchisee has been made to pay a price that will deter all the others. I have made non compliance vastly more costly than compliance. The other franchisees become less inclined to make a fight over this and everyone goes back to loathing each other in a business relationship that one side is milking into its eventual grave and the other side is too disorganized to be creative about a business positive solution. The lawyers made out like bandits. The parties are still as miserable as before the whole process began.
Think of a business organization leader who is simply so egotistical and insecure that he could never be introduced to any compromise. With him everything is always and immediately “The principle of the thing”. He refuses or cannot see that it is almost never a matter of a single principle. It is always a matter of several principles in competition for attention and waiting for some rational person to sort them out according to their value priorities. When ego forecloses rational business valuations, everyone loses. If this boss owns the company, well then it is his money and he can very well do as he chooses with it. Often, however, he has other investors and it is also their value that is wasted even more than his (if they tolerate the ego aggrandizement).
These are the two most often encountered situations in which there is usually no opportunity to achieve a rational economic disposition of a coming conflict. Actually even in these two there are other rational approaches, but no one will listen.
Where do you begin in trying to answer the question whether to try this better way of conflict avoidance? In the beginning one truth should be considered positively. Anger has a value of zero.
If you can convince yourself of the truth that anger has no value, and if you can see that earlier rather than later dispute avoidance effort holds significant potential for favorable results, we can begin to bring costly confrontations to less destructive conclusions more quickly.
At the point at which you are thinking of sending someone an accusatory email, you are about at the end of confrontation avoidance at reasonable economic cost. If you have just received an accusatory email, this is your last practical chance to step back from the brink. Part of the war persona is the ancient battle boast – I am wonderful and you are terrible. If someone made you read BEOWULF in high school or college then you know what that ritual is all about. This is a tipping point that people do not recognize. They think it is a beginning. It is way past the beginning. This problem began way before that email, and if you had recognized it well before that moment you might never be sending or receiving it.
When you think of all you spent after that email went out in your last “fight to the death”, you will understand the savings of funds and resources associated with my approach.
There is a pigeonhole practice for dispute avoidance called Conciliatory Law Practice. What I am suggesting is way beyond that, far from any touchy feely politically correct exercise. This is hardball played with intellectual acuity rather than with noise.
Specifically, there are always ways to derive valuations of potential conflict results. Among those valuations there is one or more that both you and your potential adversary can live with, no matter what the nature of the dispute. These valuations are not solely derived through accounting exercises. Accounting is a numbers only game.
If you have ever seen this work you will never handle potential disputes in any other manner. Can a completely unreasonable person refuse to participate as a matter of irrational obstinacy? Sure. Then you can always go back to wasting resources in all out confrontation with nothing lost by way of positions having been compromised. Is that likely to happen? Probably not. I have seen very angry people awaken to the realization that this is the best way possible to deal with disagreement. It is how you find the leverage point that makes this work. Often that requires some very outside the box thinking.