Conferring with a new client can be difficult. Take for example when the new client has just been served with a complaint naming the client as a defendant in a business dispute. The client sees the complaint as frivolous and describes the plaintiff as just being consumed by vindication and retribution. More importantly, considering the damages at stake, the case makes no financial sense. Assume the client is correct and the complaint can be readily defended. However, no realistic remedy exists to compensate the client for the time, inconvenience and expense involved in defending the case and the case does not have the possibility of being awarded attorney fees. Finally, the client does not appear to have sufficient financial resources to fund defense of the case.
Filing a complaint is like throwing down the gauntlet. Professional responsibilities of the attorneys, stringent timelines and civil procedures are triggered by filing in court and deter a quick and easily negotiated agreement. Often when in the role as attorney reviewing a case I see what should have been early warning signs of an impending legal claim and regret that an effective mediator or facilitator did not have the opportunity to address the conflict before it became intractable. An earlier intervention may have prevented the complaint from being filed and saved the parties time, effort and money.
When is a dispute ready for some form of resolution? Principles of legal standing determine when a case is “ripe” or ready for litigation. Lawyers rely on a point in the discovery process when the facts and damages are clearer to better assess the chances of prevailing in litigation. A lawyer may use this data to improve the chances of reaching a favorable settlement in mediation.
No guidelines exist to help determine when a case is ready for resolution for a non-litigation dispute, or one in which a costly assessment of the merits and damages is impractical. There are no rules when a case may be “ripe” for these situations. We can look to the lay definition of “ripe” for some help, such as when a fruit or vegetable is fully grown and developed. An ardent gardener, understands the horticultural aspects and timing required for a lush and delicious fruit. On the other hand, the gardener shivers with revulsion when a tomato is overripe.
The scenario in the first paragraph is comparable to an overripe tomato. Defending the client will be difficult, costly and distasteful. The personal and business relationships of the parties are likely beyond repair. Further, the reputations and connections of the parties may be damaged, particularly in a small community. If one of the parties sought a mediated or negotiated settlement prior to the filing of the complaint, the cost savings, chances of successful settlement and preservation of some aspects of the business and personal relationships would have been greater.
Conflict is so challenging because it involves feelings. A dispute can quickly get personal and emotional. When confronted by a threat we are genetically engineered to the “fight or flight” responses. We either attack, or flee from the threat. We can also get defensive, such as erecting physical and emotional barriers for protection. As a result, stress, pain and suffering often accompanies conflict. Participants in a conflict rely on these primal and subconscious responses even though they hinder communication and make resolving social, business or relationship disputes more difficult.
In the short run conflict is easier to avoid. No one wants to deal with every perceivable disagreement as a full blown mediation. It is often difficult to pick out of the many minor disputes which ones will develop into disruptive and costly mega conflicts. As a mediator and facilitator I often use the analogy that a serious conflict is similar to an erupting volcano. We are forced to pay attention to the immediate lava flow, such as the eruption of an impending divorce, threat of litigation, physical assault, and loss of employment, income or business. While we may react to the immediate hazard, the underlying needs and emotions driving the conflict, like within the volcano, are usually buried deep in the molten, subterranean strata. In these cases, the conflict either refuses to go away or becomes transformed into a different dispute.
We may also have a need to be in control when thrust into the insecurity of conflict. Perhaps the need for control over the chaos of conflict can be utilized to counteract the inherent impulse to negatively react to the conflict. The anxiety of not being in control or losing control may be greater than the apprehension of the conflict itself. As expressed by David Augsbuger, a theological author,
“The more we run from conflict the more it masters us, the more we try and avoid it the more it controls us: the less we fear conflict the less it confuses us; the less we deny our differences the less they divide us.”
So when is a good time to deal with conflict? On the one hand, the parties must be primed to unravel the intertwined and buried strands of the conflict, at least enough to agree on a durable resolution. On the other hand, it must be early enough so the intervention has a meaningful chance of success and does not exacerbate the expense and suffering of the parties.
Conflict resolution provides powerful lessons that we can assert more control over life’s trials than resorting to destructive combat or a costly, bureaucratic and ineffective justice system. The parties may have to learn new approaches such as dealing with difficult people, communication techniques and conciliation but they will also avoid the tyranny and uncertainty of having conflicts resolved by someone else.
Tuning into the signals of developing conflict can provide clues as when to deal with a conflict situation. The emergency flashers should go on when the conflict is framed in writing, someone is documenting actions, a complaint is filed, an attorney consulted, or threats made. Sometimes the indicators are more subtle, such as poor jokes, an unusual look, a bad feeling or a crank call. Ignoring these messages can be a costly mistake.
CRLS offers free consultation to help individuals and organizations become more aware of the events and behaviors that trigger a volatile and irreparable escalation of a conflict and coaching to cope with the emotional impact of conflict.