In my last post on the topic of how we initiate conflict resolution, I talked about how lawyers frame disputes in a way that may leave out some of the most important concerns of the parties. But the blame for turning a multi-faceted conflict into a contest over legal issues does not lie solely with narrow-minded or selfish lawyers. The parties also bear some responsibility for viewing their dispute in that way.
Most new or potential clients walk into a lawyer’s office looking for vindication. They want to talk about the merits right away. They want to know which side is right, and which side is at fault. Since most clients are pre-disposed to believe they are in the right, they are also hoping the legal system will provide that answer for them. Lawyers are pre-disposed to respond in a supportive way, but we usually qualify our answers to some extent, by making statements such as “based on what you are saying, it certainly looks as though you have some strong claims (or defenses).” The lawyer knows there is probably another side to the story, but what clients take away from such responses is the message that they will win.
On the one hand, lawyers have to be empathetic and encouraging, which is necessary not only as a first step toward conflict resolution, but also to show the client that you will be an effective advocate for the client’s interests. On the other hand, lawyers need to give clients sound and dispassionate advice about the weaknesses of their position, as well as the costs of pursuing it.
We need to convey to clients that in most cases, no one is ever going to determine which side is right and which side is in the wrong. Most cases are resolved without getting definitive answers to those questions. We also need to make clear that the outcome of a lawsuit usually cannot be predicted with a high degree of certainty.
At the outset of a case, therefore, lawyers might need to steer the conversation away from a discussion about which side is right, and toward some other important considerations such as how much is at stake, what resources each side has to contest the matter, how strongly each side feels about their position, and what underlying problems might be causing the conflict. The answers to those question will often determine how protracted and difficult resolution of the dispute is going to be.
We ought to start off a representation by focusing more on how to bring the dispute to a satisfactory resolution, which in most cases is going to be by negotiated agreement, instead of trying to answer the hypothetical and often unanswerable question of how the case would be decided by a judge or jury.