October 23, 2012

Law Practice Magazine :: Ask Bill

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 Table of Contents | Features | Frontlines | Technology | Business

July/August 2009 Issue | Volume 35 Number 5 | Page 14


Q. Bill, with the economy still languishing and my law firm’s business still hurting, conflicts have begun to arise between partners and between partners and associates. Should we consider bringing in someone to mediate?

A. After 25 years handling personal injury cases, I began doing mediation and arbitration full-time a few years ago. I have yet to have a law firm call me to help with problems inside the firm, but I did have an experience last year that reinforced my belief that more law firms might benefit from professional assistance in times of crisis.

My engagement last year was with a small business made up of several co-owners who were variously angry, unhappy and resentful toward each other over issues mostly involving money. (What else?) A few of the owners were threatening to leave, others wished that they would, and still others wanted to keep the group together. Cooler heads in the group felt that bringing in “a fresh pair of eyes” might help.

I hadn’t done a business mediation like this before, but I felt that it probably wouldn’t be much different from mediating lawsuits, something I had been doing regularly for years. By the time I was done meeting individually with everyone involved and holding a few group sessions, the owners were able to work out some of their problems and each of them told me that they felt that the process had been helpful.

What I found after spending time with these business owners was a host of problems not unlike what I would expect to find in any law firm—from the smallest to the largest—including these issues:

  • Poor communication
  • Power imbalance between partners
  • Inequitable distribution of profits
  • Self-interest taking precedence over the firm’s interests
  • Partners acting like “free agents” ready to move on to greener pastures and take their clients with them

As a mediator and arbitrator, I often work with lawyers—good lawyers at that—who move from one firm to another or leave a firm to start up their own practices. Those lawyers have been pretty candid in describing why they left their old firm and in assessing the problems that prompted them to leave. When I ask whether their old firm used a consultant or mediator to help with internal issues, they normally say no or that the firm leaders only bring in an outsider to provide cover so that they can justify doing what they have already decided to do.

So How Do You Have the Tough Conversations?

I hope my preceding thoughts prove helpful to partnerships like yours. However, to more fully answer your question of whether to bring a mediator (or consultant or facilitator or counselor) into your firm, I called on Stewart Levine, himself a lawyer, whose book Getting to Resolution: Turning Conflict into Collaboration offers a structured approach to conflict resolution. (He also has helpful resources on his Web site, www.resolutionworks.com.) Stewart works with law firms and other organizations, many of which are facing the kind of problems that you describe.

Stewart prefaces his remarks by cautioning that “even in good economic times, real collaboration is challenging” for lawyers, primarily because we are trained to be adversarial. He advocates “conversational models” that enable people—even lawyers—to have difficult conversations. He first tested conversational models when he was involved in divorce mediation and came to believe that if they could work in the divorce area, they could work anywhere. Over the years, he says, those models have successfully worked to “help law firms work through all manner of interpersonal, administrative and financial issues.”

In the world of building high-performance teams, according to Stewart, groups go through stages. He credits Bruce Tuckman, an organizational consultant, with identifying those stages. Tuckman calls them forming, storming, norming and performing. In his experience in working with lawyers, Stewart says that their adversarial approach tends to leave them “getting stuck in the storming stage” and that’s usually what they need to work to get beyond.

In situations where members of the firm are focused simply on “getting their way” and instinctively shift into a “win-lose adversarial mind-set,” his experience has been that “it is guaranteed to make things worse.”

“Even if you get your way, the aftermath will be destructive,” he observes.

He has found, though, that mediation and facilitation skills can be invaluable in getting through the storming stage and resolving firm conflict and reaching agreement in addressing all kinds of firm issues—from compensation to staff reductions and work assignments to all manner of decisions that need to be addressed.

Reaching the End Goal

Stewart has long been convinced that trained mediators can use their facilitation skills to help organizations address internal problems, resolve issues and make better business decisions. That is particularly true in the current economic downturn, where every problem that the firm faces will be exacerbated by financial stress. The challenge lies in getting the lawyers in the firm to buy in to that concept. There are three key steps in the process, he says:

  • Making sure people get the opportunity to tell their “stories” about a situation completely
  • Addressing the emotional issues behind the different opinions that create conflict
  • And creating a clear agreement for the future that resolves the issues

An added bonus for the firm that is able to embrace such a model is that “lawyers who are good at resolving intra-firm or intra-department issues can take their skills to the marketplace and use them to help clients succeed.” That, he says, can create a new revenue stream and, possibly, new practice areas for the firm.

During the time I spent working with the group of business owners, I first met with everyone individually and gave each the opportunity to tell their stories, just as Stewart suggests. They all did so with facts and opinions to support their points of view, and also with strong emotions. But then, when the entire group met and everyone was able to share their stories with their co-owners, they each told the same stories that they’d told to me, but I noticed their stories were far less emotionally charged. As a result, we were able to move toward dealing with the issues and, eventually, they were able to reach the “clear agreement” that Stewart Levine says is the goal. Ideally, that would be the outcome for your firm, too.