USING ADR PROCESSES TO RESOLVE INTRA-FIRM CONFLICT

by

 ROBIN N. AMADEI, J.D.
COMMON GROUND MEDIATION CENTER, LLC
303-604-1960
www.commongroundmediation.com 

Introduction

Most attorneys are familiar with how useful mediation can be in settling cases.  Attorneys may be surprised to learn, however, how valuable mediation and related ADR processes can be in dealing with internal working relationship challenges.  Over time, most law firms have experienced conflict between attorneys, between staff members, and/or between attorneys and staff.  Such conflict can interfere with productivity and may have a devastating impact on morale, ultimately impacting the firm's bottom line.[1]  Although attorneys can be skilled problem-solvers for their clients, these same attorneys are often at a loss when intra-firm conflicts arise. 

While large law firms often employ managers with specific expertise in human resources, small to medium sized firms are not structured this way.  Often, managing partners of small or medium-sized firms are responsible for human relations matters in addition to a myriad of other firm management duties.  Further, these managing partners typically maintain full law practices and are not trained, nor very interested, in personnel management.  It is no wonder that personnel matters are often not meaningfully attended to in many law firms.

When human resources issues are not given sufficient attention within the firm, unhealthy interpersonal communication begins to occur and take root.  Such communication can manifest itself in a variety of ways.  For example, when support staff or attorneys perceive that they are not recognized or appreciated, they might undertake actions which they think could make themselves look good at the expense of their colleagues.  Situations including: taking credit for another person's work, not helping a colleague that is experiencing a work load crunch, or even starting rumors about a colleague, are not uncommon in the law firm environment.  Also detrimental to a firm's work atmosphere are situations where unresolved interpersonal conflict between staff and/or attorneys continues to build over time.  As time passes, unresolved conflict continues to grow and become more complex, to the point that resolution can seem almost impossible.

Law firms experiencing conflict and/or an unhealthy working relationship environment might consider hiring an ADR professional with experience in workplace disputes to help them navigate through the situation.  There are many approaches that might be useful, depending on the unique situation that is faced by a given law firm.  Such approaches include:

1.  Mediation: 

Most lawyers are familiar with mediation in litigation or transactional settings where evaluative mediation is typically used.  In evaluative mediation, the mediator provides both process direction and substantive expertise. The mediator often assesses the case and offers opinions as to the strengths and weaknesses of each party's arguments.  The mediator then works with the parties to negotiate a mutually acceptable settlement. 

In contrast, when mediating intra-firm conflict where continuing relationships are anticipated, legal issues are often not relevant.[2]  Rather, the issues in dispute are predominantly relational in nature.  For example, many law firm disputes involve workload responsibilities, perceived negativity, attributing blame and other interpersonal matters.  In these situations, mediators typically use a facilitative approach to help the parties discuss and resolve their dispute.  In facilitative mediation, the mediator provides process direction, encouraging parties to share their underlying interests and concerns and listen to one another.  Further, the mediator helps the parties to arrive at agreements that meet such underlying needs and improve working relationships.

2.  Conflict Coaching

Staff or attorneys in conflict often have difficulty perceiving a given dispute objectively and have difficulty mapping out appropriate next steps.  For a variety of reasons, the individual may not feel equipped to initiate a conversation with his or her counterpart about the matter in conflict.  Perhaps the topic is especially uncomfortable, or the employee feels especially vulnerable.  Sometimes, talking with uninvolved co-workers about the situation, even if such conversations are well-intentioned, could result in further deterioration of the work atmosphere. 

An ADR professional could serve as a coach to an individual that would like to resolve an issue, but does not know where to begin[3].  Such a neutral third party could serve as a confidential listener and could help the individual design his or her own approach to the conflict situation.  The coach could even help the employee to practice what they will say in advance, enhancing the likelihood of a successful conversation.

3.  Condition of Work Agreements

At times, conflict is so intense between co-workers required to work together that coaching or un-leveraged mediation will not be effective.  Of course the firm could require people to either work together effectively or be fired.  Without being provided with the appropriate tools, however, employees are unlikely to be successful based upon this threat alone.  Then, the firm is faced with the difficult choice of firing one or all of the employees involved  in the matter, which could create a multitude of negative consequences, or continue to allow the conflict to infect the work atmosphere. 

For these types of situations, the firm might consider requiring that the individuals in conflict develop a Condition of Work Agreement, which sets forth specific behaviors that the employees agree to follow.   The employees and a managing partner would work with a neutral to craft the provisions of the work agreement.  This process differs from mediation in the respect that the parties do not discuss their perspectives on the past incidents that brought them to the table.  Rather, the entire process is focused on developing specific behavioral guidelines, with monitoring and enforcement provisions.  In the event that the Agreement is not followed, progressive discipline could be applied. 

If the individuals in conflict can not come up with such an agreement, the employees would be told that the firm will determine behavioral requirements and will issue these requirements as a directive to the parties.  Consequences of not following the behavioral mandates would be stated in the directive.  Often, because employees fear what the firm managers might come up with, employees in conflict redouble their efforts to develop a Condition of Work Agreement. 

4.  Workplace Assessment

In situations where conflict is diffuse within the firm and/or has been prevalent for a significant period of time, a workplace assessment might be appropriate.  In a workplace assessment, the dispute resolution professional would develop survey questions in consultation with firm management or other appropriate parties.  The survey would be designed to elicit the information that might be helpful towards improving the workplace atmosphere, such as identifying sources of conflict, areas of dissatisfaction and potential solutions.  The survey would be conducted anonymously via written responses, interviews and/or focus groups. The neutral would be responsible for administering the survey, compiling results and providing written and/or oral feedback, including recommended solutions to firm management.  Then, it is essential for firm management to consider the recommendations seriously, implement workable and appropriate solutions and report back to staff the measures that the firm will be taking based upon the assessment results.

Although a workplace assessment might be more time consuming and expensive than a single intervention (such as mediation), through assessment and follow-through meaningful change leading to a lasting shift in the workplace atmosphere can result. 

5.  Teambuilding

Engaging in a meaningful teambuilding process can be an enjoyable and productive way to build working relationships.  A meaningful teambuilding process takes place over time.  Some vendors offer experiential teambuilding workshops (ropes courses, cooking classes, etc.)  Without follow through over time, however, people could have an enjoyable day, but one could question the lasting impact of the process.  Teambuilding that could have a more lasting effect might include:  personality profiling (using the Myers-Briggs Type Indicator[4], for example), team visioning, creating team working relationship guidelines, appreciative inquiry processes[5] (enhancing working relationships building on positive stories), etc.  Monitoring and follow through of such processes is necessary to creating positive change.

6.  Dispute Management Systems Design

Dispute resolution professionals can help law firms proactively design systematic approaches to conflict.[6]  Typically, dispute management systems include step-by-step processes for managing conflict including providing parties in conflict with opportunities for coaching and mediation.  In larger firms, task forces made up of individuals at all levels of the organization are formed to work with a dispute resolution professional to develop, test, implement, and monitor the dispute management system.

7.  Ombuds

A law firm could hire a dispute resolution professional to serve in an ombuds capacity within the firm.[7]  The neutral could be available as a resource for employees that may be experiencing a conflict or other frustration at work.  The third party could take one of many roles depending on the nature of the issue and the desires of the person that is bringing the issue forward.  Such roles might include:  confidential listener, coach, mediator, feedback-provider, referral source, or consultant.  Key components of the ombuds role are: neutrality, whereby the ombuds is not perceived to be aligned with any one individual or faction; confidentiality; and empowerment, where the individual coming to the ombuds retains control of the future direction of the matter that is raised.  Ideally, the third party would have credibility and influence with the firm's partners in the event that systems issues are raised that the firm might wish to address. 

8.  Training

Many dispute resolution professionals conduct training for organizations in the areas of communication, conflict management and negotiation.  There are many reasons for hosting an in-house training for attorneys and staff in these or related areas.  When all members of the firm and staff take training together, they all learn the same communication models and approaches.  After the training, personnel can work together to make sure that the skills learned in the training are used meaningfully in the workplace.  Also, the firm would be more likely to maintain an atmosphere of effective communication and conflict resolution if it provides its employees with the tools to be able to accomplish these goals. 

Conclusion

There are a variety of dispute resolution mechanisms that can be used in the event of intra-law firm conflict, including: mediation, coaching, requiring condition of work agreements, workplace assessments, teambuilding, dispute resolution systems, use of an ombuds and training.  Workplace mediators can serve as helpful resources to determine what process might be appropriate given a firm's unique circumstances and, in many cases, serve as neutrals to implement such processes.