The Colorado Lawyer
Vol. 40, No. 8 [Page 5]
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In and Around the Bar
CBA President's Message to Members
by David L. Masters
As lawyers, we deal with conflict on a regular basis. It occurs in virtually all human and organizational relationships. When conflicts are not managed well, the results can damage individuals, relationships, and organizations. When conflicts are handled well, problems are identified and solved and relationships and organizations are strengthened.
Lawyers need to manage conflict well. We also need to recognize that conflicts are not the exclusive province of clients. Relationships between lawyers regularly give rise to conflicts. Likewise, relationships among lawyers, their partners, and employees generate conflicts that, if not managed well, harm the practice organization. Of course, there are all those conflicts between parties that lawyers are called on to resolve. Although the conflicts of our clients tend to occupy much of our thinking on how to manage or resolve disputes, we should be mindful of those conflicts that involve us as participants.
When talking about managing conflict, it helps to look at an academic definition of "conflict." A useful definition, taken from The Art of Conflict Management: Achieving Solutions for Life, Work, and Beyond, by Michael Dues,1 defines "conflict" by five elements that are almost always present when a conflict arises: (1) interdependence; (2) difference; (3) opposition; (4) expression; and (5) emotion. A brief explanation of each of these elements, along with an example, follows.
The behavior of one party has an effect on the other party. In most conflicts, the parties are related in such a manner that each has some control over and a stake in the consequences that may result from the conflict.
The employer and employee have an interdependent relationship. As a general rule, either can terminate the relationship, leaving the other to deal with the consequences.
Here, "difference" refers to the parties in an interdependent relationship having incompatible goals. More subtle, but as is often the case, difference exists when the parties perceive their goals to be incompatible.
An employee may desire and suggest a change in the conditions of employment. The employer may not think the changes will benefit the organization—or at least holds that perception.
Opposition exists when the goal or goals of one party are impeded by the other party. Opposition often appears as competition—for rewards or allocation of scarce resources. The parties to the conflict oppose each other by actions designed at preventing the other party from achieving its goals or obtaining the reward or resource.
The employer opposes the requested change in working conditions to protect the bottom line. The employee may see this as an unwillingness to share the resources (the income) that flow from their efforts.
The verbal and behavioral manifestations of the conflict are its expression. Unlike the tree falling in the forest—which makes a sound regardless of whether a listener is present—there is no conflict unless it is expressed, which may occur verbally or nonverbally.
The employee who does not receive the requested change in working conditions may become resistant to other initiatives implemented by the employer. Conversely, the employer may punish the overly demanding employee by imposing other work conditions unwanted by the employee.
Conflicts almost always involve some level of feeling—usually a negative feeling often expressed angrily. Emotions are our internal reaction to stimuli; therefore, reaction to stimuli in conflict situations frequently results in the use of a negative and angry tone.
The employee feels that the employer does not care about his or her well being, while the employer feels perturbed by what he or she sees as unwarranted demands.
The Adversary System
We lawyers tend to think of conflict resolution in the context of the adversary system. This system arose in ancient Greece as an alternative to internecine conflict. In the adversary system, each disputant presents his or her claims and supporting evidence to a neutral third party, who then judges how the dispute should be decided.
As a dispute resolution mechanism, the adversary system is competitive—that is, to have a winner, there must be a loser. This arrangement is costly, often in terms of relationships, and for organizations it may result in material costs. When employers and employees seek to resolve conflict through the adversary system, for example, the results can be costly to both parties. The ultimate adversarial resolution—termination—has immediate costs to the employee and employer.
This is one reason disputants frequently try to settle matters out of court. Partners in a law firm do not want to resolve their disputes through legal proceedings; they know too well the financial and emotional costs.
The term "win–win" frequently is misused. The term stems from work done by Morton Deutsch, often regarded as the founder of modern conflict management theory and practice.2 In his research, Deutsch observed that in task-oriented groups with shared goals, most conflicts arose over how to achieve the goals, not from the fact that one individual was blocking another’s way in reaching an individual goal. Deutsch’s insight was that conflict might benefit task-oriented groups in finding better ways to reach their shared goals.
Deutsch identified two types of conflict: competitive conflict—situations that require one party to lose so the other may win; and pure conflict—situations in which both parties can win. An example of pure conflict might be an argument between a senior partner and an associate over how to present certain evidence; they both have the same goal, so they’re either going to win together or lose together. According to Deutsch, the possible outcomes in conflicts are: (1) win–lose (competitive); (2) no win–no lose (a compromise or a tie and still competitive); (3) lose–lose; and (4) win–win. Deutsch found that most conflicts are "pure," which means that we can pursue a win–win solution; both parties can negotiate, and neither has to lose.3
Two important lessons can be taken from Deutsch. First, when you encounter a conflict with someone with whom you have shared goals (partners, employees, court personnel, or even opposing counsel), try to identify the shared goals and see how you can help each other reach them. Second, try to treat conflicts as problems or challenges that you can work on with the other party to achieve a constructive solution for both parties. It’s often not productive to try to "win" at the other party’s expense. Likewise, it can be a mistake to immediately seek a compromise. As Professor Dues says, "You shouldn’t chase ‘no win–no lose’ when you could be chasing ‘win–win.’"
Perception and Perspective
Often, conflict arises not so much from an actual difference in goals but from the perception we have of that difference. Perception is our awareness of the environment from which we assign meaning to the things we observe. In the realm of conflict management, we’re talking about the things we hear people say and the things we see them do (or not do). One observer may perceive a difference when none exists, while another may perceive a different difference than the other party saw. To manage conflict well, we need to develop the ability to see things from the other person’s point of view. For example, the parties to a dispute may share the goal of defining the scope of an easement. The property owner may perceive the easement holder’s goal as expanding the scope when in fact all that is sought is a clear delineation of the allowed uses. If the property owner were to look at the matter from the perspective of the easement holder, he or she might see that clarification rather than expansion is the goal. With that understanding, a significant aspect of the conflict would be resolved.
A final aspect of the academic definition of conflict is the presence of emotion, which frequently manifests itself in the negative and in the form of anger. To effectively manage conflict, then, one must deal with emotion. Modern research suggests that humans are emotional beings who have evolved their ability to reason. The ability to reason is what helps us deal with our emotions. To deal with emotions in a conflict, it is important first to understand that emotions are not behaviors. Being angry is not the same as acting on your anger. Telling someone that you’re angry does not require you to behave badly. Emotions are your internal responses to what you perceive. The fact that you have feelings, particularly in the context of a conflict, requires neither explanation nor apology.
It often will be helpful to report your (or your client’s) emotion to the other party. Reporting to the other party that you and your client are angry, disappointed, or scared, for example, needs to be done in a way that does not suggest a judgment about the other party’s conduct. It can be difficult for one party to hear the other express his or her negative emotions without becoming defensive or hostile; however, emotion is part of conflict and needs to be recognized for what it is.
Differences in goals, including perceived differences, are part of our definition of conflict. Goals come in four varieties:
1) topic goal (How is the issue that seems to identify the conflict defined?);
2) relational goal (How do I want to be treated in this relationship—because the parties to conflict are interdependent?);
3) identity goal (How do I want to be perceived?); and
4) process goal (How do I want to resolve this conflict?).
The topic goal usually is obvious, but care needs to be taken to perceive the topic of the dispute from the other party’s perspective. Relational goals can be powerful (for example, you want to continue the relationship with your business partner). The identity goal deserves emphasis, especially when dealing with conflict between lawyers. The question to consider is: Do you want to be perceived as a jerk or as a professional? Finally, the process goal determines how you, as a party to a conflict or the representative of a party to a conflict, want to resolve the dispute.
Conflict Management Styles
Kenneth Thomas and Ralph Kilmann4 identified five conflict strategies and arranged them in a model according to the degree to which each expressed "concern for self" and "concern for the other person," and the degree to which each represented cooperativeness or non-cooperativeness. Think of these as default strategies for managing conflict. Which is your default?5
Roger Fisher and William Ury6 developed four principles for win–win negotiations.
1. Separate the people from the problem; that is, focus on events rather than the parties.
2. Focus on interests not positions. An interest is the reason behind the position taken on a particular issue.
3. Generate options for mutual benefit. This can be accomplished through brainstorming, where ideas are generated and recorded without regard to their merit; analysis of the merits comes later.
4. Base the choice of the ideas generated on objective criteria.
These principles of negotiation might apply to resolving conflicts between you and a close business associate (employer, employee, partner); between you and opposing counsel; or even between represented parties.
In the end, we may find out that compromise is not the best way to resolve disputes. In compromise, both parties give up something—essentially, both parties lose. If the parties to the conflict have a deeply interdependent relationship, then compromise should not be the preferred or default method for resolving disputes. The continuing interdependent relationship of the parties will be healthier if they identify and work to achieve a common goal as the means of resolving the conflict.
The art of managing conflict goes beyond what lawyers do on behalf of their clients. Each of us, as members of the human race, must deal with conflict on a regular basis. Learning to manage it well produces many benefits.
1. Dues, The Art of Conflict Management: Achieving Solutions for Life, Work, and Beyond (The Great Courses, The Teaching Company, 2010). Many of the academic ideas mentioned in this article derive from this source.
2. See generally Deutsch, The Resolution of Conflict: Constructive and Destructive Processes (Yale University Press, 1973).
3. See Dues, supra note 1.
4. Ralph Kilmann is a consultant and author of fifteen books and more than 100 articles on organizational design and conflict management. He taught for approximately thirty years in the Graduate School of Business at the University of Pittsburgh. He is perhaps best known for his work, along with Kenneth Thomas, on the Kilmann–Thomas instrument for assessing five conflict styles. Kenneth W. Thomas has been a professor of management at University of California at Los Angeles, Temple University, and the University of Pittsburgh. He focuses on building tools to improve motivation and work performance. Along with Ralph Kilmann, Thomas developed the concept of five conflict styles and the instrument for assessing an individual’s conflict styles.
5. The graphic is adapted from Dues’s materials. See Dues, supra note 1.
6. Roger Fisher is a professor of law emeritus at Harvard Law School and former director of the Harvard Negotiation Project. After serving in the military during World War II, he helped administer the Marshall Plan in Paris and Washington, DC. He practiced law in Washington and served as a consultant to the Department of Defense. In addition to co-authoring with William Ury Getting to Yes: Negotiating Agreement Without Giving In (Penguin Books, 1991), Fisher has authored seven other books on conflict management. He originated the award-winning television series "The Advocates" and consults with individuals, organizations, and governments on conflict management. William Ury is a former professor at Harvard Business School and a founder of the Harvard Negotiation Project. Working with the Carter Center of Emory University, Ury continues to serve as a mediator and advisor to governments and organizations around the world. He served as consultant to the White House on establishing nuclear risk reduction centers in Washington and Moscow. Ury is the author of five books in addition to Getting to Yes, the most recent of which is Getting Past No: Negotiating with Difficult People (Bantam Books, 1991).
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