resolving_issues_with_your_boss

01/12/2025:

Resolving Issues with Your Boss (Part 8):

Litigation, Arbitration, and Negotiation

Summary of Part 6

Part 7 explored the complex psychology of boundaries within groups and organizations, emphasizing the challenges of understanding human behavior in diverse, multilayered environments. It critiques Eliyahu Goldratt's assertion that individuals can predict their behavior, highlighting the unpredictability and variability in human actions.

Social, physical, emotional, and cognitive boundaries shape interpersonal dynamics and workplace interactions. The article discussed the importance of visibility, legitimacy, and patience when crossing borders, particularly in professional settings. It concludes by stressing the importance of asking the right questions to foster mutual understanding, trust, and collaboration, ultimately reducing conflict and promoting productivity.

Litigation and Arbitration

If you are involved in litigation or Arbitration in the workplace, your relationship with the other party is likely far beyond the point of reconciliation. In civil society, these processes can be seen as the functional equivalent of war. However, it is essential to understand the distinctions between them to evaluate the range of available strategies properly and to place the attorney's role into the proper context.

First, it's essential to recognize that litigation and Arbitration are not primarily conflict resolution or tension-reduction strategies—they are conflict management strategies. Conflict resolution aims to find a mutually agreeable solution, while conflict management focuses on controlling and mitigating the negative impacts of a conflict, often without necessarily resolving the underlying issue.

While litigation and Arbitration share some similarities, they have key differences, especially regarding the role of attorneys.

Litigation is a formal process conducted in a public court of law. A judge or jury determines the outcome based on legal principles and the evidence presented by the parties. Litigation follows strict procedural rules, including discovery, motions, and evidentiary standards. The result is a binding decision that may be appealed.

Arbitration, by contrast, is a private and often less formal process in which an arbitrator, agreed upon by the parties, hears the case and issues a decision. Arbitration is usually quicker and more cost-effective than litigation, offering flexibility in procedure and confidentiality. Arbitrators are often selected for their expertise in the relevant field.

Arbitration is particularly suited to complex, industry-specific disputes. However, arbitration decisions (called "awards") are binding and generally not subject to appeal except in limited circumstances, such as proven partiality or misconduct by the arbitrator.

Litigation Attorneys play a crucial role as advocates for their clients. They develop legal strategies, research, draft pleadings, and present arguments in court. Attorneys manage the discovery process, gathering and analyzing evidence to support their case. They may engage in pre-trial motions, cross-examine witnesses, and deliver persuasive arguments to convince the judge or jury.

Attorneys must also ensure compliance with procedural rules to avoid penalties or unfavorable rulings. After a verdict, they may file appeals, requiring expertise in appellate law. In essence, an attorney in litigation acts as a guide and a champion, leveraging their legal expertise to secure the best possible outcome for their client.

The attorney's role in Arbitration differs due to its streamlined and informal nature. Attorneys assist in selecting an arbitrator—often one with expertise relevant to the dispute—and prepare and present their client's case. While discovery in Arbitration is typically more limited than litigation, attorneys must still effectively gather and present evidence.

In Arbitration, attorneys focus on advocacy with less rigid procedural constraints, delivering concise and compelling presentations. They may also draft and negotiate the arbitration agreement, defining essential terms such as the scope of Arbitration and procedural rules. Once an award is issued, attorneys may advise on its enforcement or challenge it in limited circumstances permitted by law. In Arbitration, the attorney's role blends legal rigor with strategic flexibility.

Negotiation vs. Mediation

Negotiation and Mediation are alternative dispute resolution methods that emphasize collaboration rather than confrontation. Negotiation is a direct process in which the parties, with or without attorneys, engage in discussions to resolve their differences and reach a mutually acceptable agreement. It is informal, unstructured, and controlled entirely by the parties involved, offering flexibility in finding solutions.

Mediation involves a neutral third party—the mediator—who helps facilitate communication and guides the parties toward a resolution. The mediator does not make decisions but helps clarify issues, identify interests, and explore settlement options. Mediation is typically structured yet flexible, involving joint sessions and private caucuses, and prioritizes maintaining relationships and confidentiality.

In Negotiation, attorneys act as advisors, strategists, and negotiators. They help clients identify goals, assess risks, and evaluate settlement options. Attorneys may negotiate directly with the opposing party or offer behind-the-scenes counsel to their client. They ensure their client's legal rights and that the proposed agreements are legally enforceable.

Attorneys also draft settlement agreements, ensuring clarity and compliance with applicable laws. Their goal is to achieve the best possible outcome for their client while maintaining professional integrity and fostering constructive dialogue. In some cases, attorneys may adopt collaborative negotiation techniques to build trust and encourage cooperation.

In Mediation, attorneys serve as advocates and advisors, guiding their clients through the process while respecting the mediator's role as a neutral facilitator. Attorneys help clients articulate their interests, understand the other party's perspective, and evaluate settlement proposals. They may participate actively in mediation sessions, presenting arguments and negotiating on their client's behalf.

Additionally, attorneys prepare their clients for Mediation by reviewing the case, identifying potential solutions, and advising on settlement parameters. Once a resolution is reached, attorneys ensure the agreement is comprehensive, enforceable, and legally sound. In Mediation, the attorney's role balances assertive advocacy with a collaborative mindset, fostering a resolution that meets the client's needs.

The Power of the ABA

Attorneys are central figures in the legal landscape, and their influence is often not fully acknowledged, even by attorneys themselves. The American Bar Association (ABA) significantly influences the legal profession in the United States. While the ABA does not have direct regulatory authority, it sets ethical and professional standards that serve as a model for state bar associations and courts. The ABA's Model Rules of Professional Conduct, for instance, guide attorneys' ethical behavior and are widely adopted, with modifications, by most states.

The ABA also plays a pivotal role in legal education through its accreditation of law schools, ensuring consistent standards across the profession. Its advocacy efforts shape legislation, legal reform, and public policy. The ABA's role in defining the scope of legal practice and its emphasis on professionalism underline its power as a unifying body for attorneys nationwide.

Non-Attorney Mediators: Where’s the Line?

The distinction between the unlicensed practice of law and non-attorney mediation is vital to preserving the integrity of the legal profession and protecting consumers from unauthorized legal advice. The unlicensed practice of law occurs when individuals without a law license perform tasks legally reserved for attorneys, such as providing legal advice, representing clients in court, or drafting legal documents.

In contrast, A non-attorney mediator’s role is to facilitate communication between parties and help them reach a mutually acceptable resolution without offering legal advice or making binding decisions. They must remain neutral and impartial, refraining from interpreting the law or providing legal guidance, and ensure that both parties have an equal opportunity to express their views. While they may assist in drafting the framework of an agreement, the mediator cannot create legally binding documents and must encourage the parties to consult legal counsel for formalizing any settlement.

While non-attorney mediators can be highly effective, their role differs from legal professionals. This distinction ensures that mediators operate within their expertise while maintaining the standards of the legal profession and protecting consumer rights.

Conclusion

Understanding the differences between litigation, arbitration, negotiation, and mediation is crucial to navigating legal disputes. Each process serves a distinct purpose and is suited to different conflicts, with unique approaches to resolving disputes. While litigation is formal, public, and often lengthy, arbitration offers a more private, efficient, and specialized alternative. Negotiation and mediation, on the other hand, emphasize collaboration and communication, prioritizing mutual understanding and maintaining relationships.

Attorneys play a central role in all these processes, acting as advocates, strategists, and advisors. Their expertise is crucial in guiding clients through the complexities of each method, from the structured litigation proceedings to the flexible, less formal nature of arbitration and alternative dispute resolution. Whether through advocacy in court or facilitating a settlement in mediation, attorneys ensure that their client's interests are protected while navigating the legal landscape.

However, relying solely on attorneys as the solver of all dispute resolution efforts is unrealistic on several levels. While skilled in legal matters, attorneys may prioritize legal outcomes over emotional or relational aspects, leading to less satisfactory resolutions for the parties involved. Their approach may be more adversarial than collaborative, undermining efforts to reach a mutually agreeable compromise.

Additionally, attorneys may not always be trained in mediation techniques or have the necessary neutral perspective, potentially creating a bias toward one side. This could result in protracted negotiations, higher costs, and increased stress for the disputing parties, as the focus may shift more toward legal strategy than equitable resolution. Most importantly, attorneys are expensive. When the money runs out, often so does the willingness to keep helping.

By understanding these various dispute resolution strategies and the attorney's role, individuals and organizations can make more informed decisions about addressing and resolving conflicts. With the right approach, legal disputes can be managed effectively, preserving relationships and achieving fair and efficient outcomes.

* Note: A pdf copy of this article can be found at:
https://www.mcl-associates.com/downloads/resolving_issues_with_your_boss_part8.pdf

References

Bacharach, A., & O'Leary, R. (2008). The influence of organizational context on mediation and arbitration practices: The role of lawyers. Negotiation Journal, 24(3), 307-326.

Kornhauser, L. A. (2004). Litigation and settlement in the shadow of the law. Law and Society Review, 38(3), 273-312.

Glover, M. (2007). The role of attorneys in alternative dispute resolution: Bridging the gap between litigation and mediation. Conflict Resolution Quarterly, 24(1), 65-79.

Menkel-Meadow, C. (2001). Whose dispute is it anyway? A philosophical and practical inquiry into the role of neutrality in mediation. Journal of Legal Education, 51(1), 15-31.

Shapiro, D. L., & Brett, J. M. (2003). The role of negotiators’ emotions in understanding negotiation behavior. Journal of Organizational Behavior, 24(4), 1-18.

Susskind, L. (2014). The future of the legal profession: How technology and changing client expectations will shape the profession. Harvard Law Review, 127(6), 1815-1837.

© Mark Lefcowitz 2001 - 2025
All Rights Reserved

While listening to an audiobook on the Medici by Paul Strathern, I was presented with a historical citation that I knew to be incredibly inaccurate. In a chapter entitled, "Godfathers of the Scientific Renaissance". discussing the apocryphal tale of Galileo's experiment conducted from the Leaning Tower of Pisa, the author cites Neil Armstrong in the Apollo 11 flight to the Moon with its memorable modern recreation, using a hammer and a feather.

Attributing this famous experiment to Armstrong on Apollo 11 is incorrect. It occurred on August 2, 1971, at the end of the last EVA of Apollo 15, presented by Astronaut Dave Scott. To press the point further, Scott used a feather from a very specific species: a falcon's feather. This small piece of trivia is memorable since Scott accompanied by crew member Al Worden arrived on the Lunar surface using the Lunar Module christened, "Falcon".

In an instant, the author's faux pas – for me -- undercut the book's entire validity. In an instant, it soured my listening enjoyment.

Mr. Strathern is approximately a decade my senior. As a well-published writer and historian, it is presumed that he subscribes to the professional standards of careful research and accuracy. Given this well-documented piece of historical modern trivia, I cannot fathom how he got it so wrong. Moreover, I cannot figure out how such an egregious error managed to go unscathed through what I assumed was a standard professional proofreading and editing process.

If the author and the publisher’s many editorial staff had got this single incontrovertible event from recent history wrong, what other counterfactual information did the book contain?

What is interesting to me, is my own reaction or -- judging from this narrative – some might say, my over-reaction to a fairly common occurrence. Why was I so angry? Why could I not just shake it off with a philosophical, ironic shake of the head?

And that is the point: accidental misinformation, spin and out-and-out propaganda -- and the never-ending stream of lies, damned lies, and unconfirmed statistics whose actual methodology is either shrouded or not even attempted -- are our daily fare. At some point, it is just too much to suffer in silence.

I have had enough of it.

God knows I do not claim to be a paragon of virtue. I told lies as a child, to gloss over personal embarrassments, though I quickly learned that I am not particularly good at deception. I do not like it when others try to deceive me. I take personal and professional pride in being honest about myself and my actions.

Do I make mistakes and misjudgments personally and professionally? Of course, I do. We all do. Have I done things for which I am ashamed? Absolutely. Where I have made missteps in my life, I have taken responsibility for my actions, and have apologized for my actions, or tried to explain them if I have the opportunity to do so.

For all of these thoughtless self-centered acts, I can only move forward. There is nothing I can do about now except to try to do grow and be a better human being in all aspects of my life. That's all any of us can do. I try to treat others as I wish to be treated: with honesty and openness about my personal and private needs, and when I am able to accommodate the wants and needs of those who have entered the orbit of my life.

We all have a point of view. Given the realities of human psychology and peer pressures to conform, it is not surprising that I or anyone else would surrender something heartfelt without some sort of struggle. However, we have a responsibility to others -- and to ourselves -- to not fabricate a narrative designed to misinform, or manipulate others.

Lying is a crime of greed, only occasionally punished when uncovered in a court of law
I am sick to death with liars, “alternative facts” in all their varied plumages and their all too convenient camouflage of excuses and rationales. While I am nowhere close to removing this class of humans from impacting my life, I think it is well past the time to start speaking out loud about our out-of-control culture of pathological untruthfulness openly.

Lying about things that matter -- in all its many forms, both overt and covert -- is unacceptable. When does lying matter? When you are choosing to put your self-interest above someone else’s through deceit.

Some might call me a "sucker" or "hopelessly naive". I believe that I am neither. Our species - as with all living things -- is caught in a cycle of both competition and cooperation
We both compete and cooperate to survive.

There is a sardonic observation, “It’s all about mind over matter. If I no longer mind, it no longer matters”. This precisely captures the issue that we all must face: the people who disdainfully lie to us – and there are many – no longer mind. We – the collective society of humanity no longer matter, if for them we ever did.

We are long past the time when we all must demand a new birth of social norms. We all have the responsibility to maintain them and enforce them in our own day-to-day lives. Without maintaining the basic social norms of honesty and treating others as you wish to be treated in return, how can any form of human trust take place?