Lawyers as a Catalyst for Change

in Early Issue Business Conflict Management

Ute A. Joas Quinn* 

 

Reprinted with permission of the authors and the Association of Corporate Counsel as it originally appeared: Ute A. Joas Quinn, “Lawyers as a Catalyst for Change in Early Business Conflict Management”, ACC Docket (July/August 2012): Page 49-60. Copyright © 2012, the Association of Corporate Counsel. All rights reserved. If you are interested in joining ACC, please go to www.acc.com, call 202.293.4103 x360, or email membership@acc.com

 

William Ury, co-author of “Getting to Yes” and The “Third Side”, has said that “cooperation is essential to the future of humanity”.  In an era of globalization and the current “knowledge revolution”, Ury believes that there is a growing need for mediation because negotiation is becoming the primary form of human decision-making.  Where negotiations reach an impasse, mediation is an “inevitable next step”.  

Though it may be inevitable, not all factions of society have caught on equally to the need to progress in this direction.  The tsunami of acceptance of collaborative relationship-building techniques to manage conflicts is yet to transpire, with business- and civil society- lawyers alike often guilty of taking the path of habit (i.e., litigation).  Why?

From a business perspective, the amount of time and effort to be spent on any one topic is directly related to the risk and/or opportunity that issue may bring to the company.  Non-technical (or corporate social responsibility “CSR”) risks are moving to the extremities of risk matrices in terms of likelihood and impact due to increased public attention, regulatory enforcement, and looming economic and ecological realities which drive many to see the glass as “half empty”.  These global societal, economic and environmental realities are increasing the number of risks which companies have to contend with, but are also exponentially changing the range of opportunities.  Stimulated by studies opining the costs of nontechnical risks to the business as well as the broken dichotomy between business- and human rights- agendas achieved by John Ruggie’s Guiding Principles, big businesses are vigorously working to adapt internal risk assessments, implementation programs and assurance reviews to respond to changes in societal goalposts.  Public-private partnerships such as the UN’s Clean Cookstove Initiative [4] are springing to life in addition to more traditional collaborations with competitors, suppliers, and even new industries in a bid to anticipate future growth platforms.  As the inevitable conflicts generated by these risks and opportunities expands, so too must the range of solutions to manage these conflicts going forward.  For in-house counsel and others charged with building effective conflict management (read: prevention) systems, these are exciting times.  

Counsel are learning to assist in these soft law aspects, or what used to be areas of discretionary responsibility (on top of economic, legal & ethical obligations), which are now of such key concern to industry [5]. However, the extent of innovation and collaboration which counsel have applied up to now is not nearly in keeping with the efforts of their industry counterparts, though the business case for a different approach – at both the early issue identification stage (conflict management) as well as the issue crisis/dispute stage (dispute resolution) -- is strong.  A few examples:


Dispute Resolution Stage

  • In 2006, the American Arbitration Association published a study [6] measuring characteristics of in-house legal departments who can be considered “dispute-wise”, i.e., well-managed company legal departments who measure success much in the same way as the risk management practices of well-managed business organizations, by using a portfolio approach to disputes:

“Typical of the portfolio approach is a willingness to take a more global view of the full spectrum of an organization’s disputes – addressing each of them in relation to other disputes in the portfolio with an overall goal of minimizing risk, cost, time spent, and resources expended, while preserving important business relationships… .

“Those companies falling into the “most dispute-wise” category with respect to their handling of ongoing disputes are also actively engaged in conflict avoidance programs, putting in place a framework that both helps prevent disputes from arising and that deals with disputes in their earliest stages as close as possible to the point of origin.”

The results of the study were telling—the most “dispute-wise” companies averaged 28% higher price-earnings ratios than the mean for all public companies, and 68% higher than those in the least dispute-wise category.  According to the study, these outcomes suggested that the most dispute-wise companies are “particularly concerned with maintaining good relationships with all of its stakeholders[7] and that dispute-wise business management practices appear to be associated with positive business outcomes.  Key benefits identified with business-related management practices included:

  1. Stronger relationships with customers, suppliers, employees, and partners, describing these relationships as excellent/very good;
  2. Appreciation and valuing the fairness and speed of ADR processes in resolving disputes with customers and suppliers while turning away from what, in many instances, had become a single-minded focus on litigating at almost any cost approach;
  3. Lower legal department budgets and management of inhouse legal costs with a higher degree of efficiency; and
  4. A good utilization of inhouse legal resources [8].
  • In 2010, in a survey conducted by the Rome-based ADR Center (funded by the European Commission)[9], research was done to assess the current status of intra-European Union ADR practices.  The study was meant to assist policy makers in applying the newly approved EU Mediation Directive with the ultimate goal being to ensure the growth of cross-border commercial transactions. Comparing litigation to the ADR alternatives of arbitration and mediation, arbitration takes slightly less time than court proceedings, but still (on average) takes more than a year to complete.  Mediation takes significantly less time and is exponentially more cost efficient.

The status quo in terms of EU litigation statistics is appalling:

  • A study conducted by the British ADR provider,  CEDR on the extent of costs savings through early resolution of civil and commercial cases through mediation compared with litigation were estimated at around £1.4bn in 2010 (constituting saved management time, avoidance of costs related to lower productivity, legal fees and damaged relationships), more than 100 times mediators’ fee income of £13m.[10]  Other in-house success stories exist on this front as well:

[11]

 Early Issue Conflict Management Stage

Ironically, there are those who believe that legal issues are currently already well served by ADR while businesses themselves are falling behind the plot in using similar systems for early conflict prevention issues such as employee issues. [12]  One positive example is the conflict management system set up by Giant of Maryland, LLC (“Giant”), in which a Fair Employment Practices Office was set up for its 25,000 employees.  Results: in 2002, the Office received 800 internal complaints, only 20 of which became formal complaints (18 of these were also ultimately resolved). Though dated, such statistics can be considered a success by any means.

A 2004 underlying study[13] however, in the same area of Maryland, suggested that ADR techniques were not pervasively used outside of legal departments for internal conflict prevention purposes.  According to one author: 

  • 35% of respondents reported that ADR training and education is provided to legal staff; while only 13.5% provided such training and education for the non-legal staff
  • 71.4% had no dispute resolution training and education for first line supervisors.
  • 69% had no dispute resolution training and education for managers.
  • 88.1% had no dispute resolution oversight body that includes representation of key stakeholder groups
  • 67% had no ADR program that is used in resolving employment and workplace disputes
  • 45.2% had no one who functions as an internal, independent and confidential neutral
  • 61% had no central coordinator or coordinating office which spurs the development, implementation, and administration of their companies dispute resolution efforts
  • Only 2.4% had a trained mediator on staff either full or part time.
  • 0% use external mediators on a contractual basis to help resolve conflicts within their workplaces.[14]

With the passage of the EU Mediation Directive[15], at least one group of companies in Germany have taken their cue to ensure that ADR practices are of first rate quality and used with optimum result both within legal departments as well as human resource and compliance departments.[16]  Some of these companies also house their own internal mediators.[17]

Given the strong business case for ADR techniques in both dispute resolution and early conflict management stages, what is impeding the tsunami realization of Ury’s “inevitable” next step?  The first place to look, for both the problem and ultimately the solution, is the lawyers.


Business on Lawyers

In order to generate a culture change of improvement and to better connect with external demands on the corporate agenda, some businesses are defining imperative behaviours to meet the risk and urging middle management to embrace a more external focus.  Businesses instruct that an external focus requires the willingness to listen and act, an obsessive avoidance of (perceived) arrogance, meaningful transparency to engender trust, and regular engagements which are relationship-focused rather than meeting-focused.  

How do these behaviours translate to lawyers? A businessman’s first reaction is typically “Not at all”.  Strategies such as those which focus on the heart rather than the mind seemingly have little nexus with a position-based lawyer.  It necessarily does not entail seeking to win legal arguments, obtain the best judgment in financial terms, or identifying and obliterating the “opposition” simply because viewpoints differ.  In this arena, the lawyer is seen as a technician (preparing necessary paperwork) rather than as a strategist and as such more likely to harm collaborative efforts than facilitate them if brought in too early in the discussion:

“Talking with one’s attorney may help the company sidestep a possible legal problem, but it does not address the core issue of the dispute itself.  It merely addresses the legal issue.  True early intervention involves addressing the actual conflict head on through an effective conflict resolution process.”


Lawyers on Lawyers

Strangely, a traditional lawyer’s first reaction to the question posed is much the same as the business.  Where a robust analysis of strategic issues encompasses attention to People, Process, and Content, lawyers have largely been content to focus on Process, leaving People and Content to others.  Such a tunneled outlook relegates non-technical risks and corporate social responsibility issues – in most lawyers’ minds – to “disputes” needing a formal judicial determination, rather than evolving “conflicts” which require engagement, collaboration, trust and respect.  Subjective skills as these have no place in court rooms or arbitral tribunals and logically then (such lawyers rationalize), no place in the legal professional’s repertoire.  It is no wonder then that there is also no formal recognition by legal professional bodies, law schools, law firms and the like of lawyering skills which focus on conflict management rather than dispute resolution.  At base however, such views are short-sighted and ultimately detrimental to the future of the legal profession.  As Bernard Mayer so bluntly put it in his book “Staying with Conflict”:

“When resolution is the phase of conflict that parties need to address, we are in business.  But this is a very limited and limiting view of what disputants want and need in the broad range of conflicts that they face in their lives.  As a result our efforts have been more constricted than they need to be… .  [Conflict professionals] need to start by revising our sense of purpose… our overriding goal ought to be to promote a constructive approach to engagement in the significant issues that disputants face… .”[19]

Oddly enough, even this advice is directed towards conflict professionals, i.e., collaborative consultants (non-lawyers) such as the Consensus Building Institute, the Compliance Advisor Ombudsman, and Collaborative Decision Resources who are urgently being enlisted by the businesses to fill the void left by a too narrow appreciation of the skills lawyers can bring to the table in this arena.  As legal professionals, we are selling ourselves short at the same time as being sold out.


The Need for Vision

As conflict management is a natural preventative measure to avoid full blown dispute resolution, why is the legal profession allowing this niche to slip through its fingers?  One potential hard reality is that lawyers, accepting their role as technicians, have never felt the need to use vision – in hard contrast to their clients.  

As an example, multinationals spend significant funds to try and anticipate the markets of the future and to build a vision which can meet that future.  Key to that vision is innovation.  The Future Agenda program, sponsored by the Vodafone Group, has identified that innovation and foresight are the keys to the future for business [20]. Innovation is exemplified by a 5-pronged approach of seeing the bigger picture (Shell’s “inside-out, outside-in” approach), challenging existing views (GE’s “seeking to destroy your own business” approach), accommodating wild cards (Nokia’s “What if?” scenarios trying to anticipate events such as Iceland’s volcanic ash cloud which stopped air traffic), building scenarios of the possible “dimensions” man may live in in the future and identifying growth opportunities [21].   By definition, innovation is an ever-moving target, quickly outdated as new technologies, unfamiliar environments, and varied competitors enter the market.  Economic survival depends upon anticipating and rising to the challenge of those moving targets and continuing to challenge existing views which cannot seem to adapt.

Many lawyers have miscalculated in assuming that these business developments have no effect on our profession.  When debating the role of lawyers in implementing human rights through the Guiding Principles, for example, lawyers continue to focus on access to litigation[22] rather than company grievance procedures which, if employed as envisioned, should work to curtail most conflicts from ever rising to the level of a dispute in the first instance.  Similarly, the debate amongst law firms on the same subject of human rights sadly seems to focus more on the type of client which “deserves” legal representation[23] rather than broadening the type of services lawyers should be providing (i.e., collaborative dispute avoidance), no matter how “acceptable” certain factions of society might deem their clients.  And such broadening should be directed to the entire profession (would be plaintiffs’ lawyers alike), not simply corporate lawyers. [24].

To be fair, the lack of vision is not entirely a lawyer’s fault (nor is the label fitting for all members of the profession, some of whom are notable visionaries in their own right [25]).  Legal education and training has historically not included thought leadership as part of the curriculum.  Nor can external counsel perhaps be expected to emulate (as well as inhouse counsel should) that to which they have had no exposure in their own organizations.  But as part of a profession which prides itself in “relating” to (business, NGO, governmental, societal and other) clients so that it can best represent their interests, any lawyer who steadfastly harbors harnassed views of resolution over avoidance is only, as Wolf van Kumberg, European Legal Director of Northrop Grumman puts it, “treating the illness rather than eliminating it – an inherent conflict.”  The hard contrast juxtaposed with our clients’ almost fanatical inner-, outer- and sidewise- reflections on “the meaning of it all” for their businesses makes stubborn and rusted ways-of-old when it comes to dispute resolution out of sync with our clientele.  Certainly as David Maister’s Trusted Advisor [26] coaches us, how can we instill personal trust from our clients by understanding their visions and having some capacity to act upon that understanding if we have no vision or direction of our own to guide the legal profession through the inevitable changing future of conflict management?  How else can we serve our clients to build a fence at the top of the cliff rather than just have the ambulance waiting at the bottom?[27]


Diversity of thought is key to vision and innovation

To realize a vision – and particularly one which has innovation and collaboration as core components – diversity of thought is needed.  Unlike its popular definition, “diversity” is not purely a statistical objective – it is a welcoming and acceptance of the possibility that any idea is a potentially good idea no matter its source so long as the idea has substance.

Using this definition, it is difficult to measure when the diversity needed for collaborative innovation has been achieved.  Companies or law firms who present gender and origin statistics demonstrate only that different ideas potentially exist in the organization, but not necessarily that those ideas are encouraged, spoken out, or even listened to.  The key performance indicators (KPIs) which measure this level of diversity are more nebulous, and are ultimately reflected in an organization’s performance, DNA, and reflections of the people who work for it.

Collaborative innovation of the sort aspired to in both generating future business growth as well as effective conflict management has diversity at its core.  New ideas must come from new sources, both from within and from outside of the organization.  In the 2012 Edelman Trust Barometer study results [28], Edelman speaks of business earning a future License-to-Lead to replace the current standard of achieving a License-to-Operate.  “Radical transparency” is urged such that businesses learn to engage first with employees as the most crucial element of society to earn trust, even before shareholders.  Trust, seen as an essential line of business, will then bolster reputations, lead to more collaborative and sustainable solutions, and ultimately less adversarial, high exposure, formal legal disputes. 

Again, neither innovation, diversity nor trust are a sermon to a statistically diverse audience.  It is listening first, collaborating second, and –whenever possible -- building new concepts which all sides can support third.  It is about taking action—the proverbial “sum is greater than its parts” at its best.  Some thought leaders suggest that listening and empathy may not promote change but that perspective-taking and action towards an overall goal may work better to funnel conflict into solutions [29].  But joint gains should be the undisputed objective in any case.


Inspiring change through collaboration

The future of effective conflict management lies in the legal profession’s ability to connect themselves -- and thereby align with their clients -- to the “human agenda”.

Thought leaders such as Richard Susskind in his The End of Lawyers? Rethinking the Nature of Legal Services are convinced that the type of lawyers who help clients prepare more responsibly for the future “are sorely needed and long overdue” and may “fundamentally change the way in which the law is practiced and administered.”[30] Similarly, Julie MacFarlane’s “conflict resolution advocacy” concept in The New Lawyer: How Settlement is Transforming the Practice of Law also comes closer to the mark of standing in the shoes of business in terms of relationship-building [31].  

Even further ahead is the International Mediation Institute, which is the first organization in the world to attempt to transcend legal jurisdictions and their restrictions in terms of how conflicts and disputes are resolved by development of global professional standards for experienced mediators.  The IMI Vision is simple and self-contained:  Professional Mediation Worldwide.  Multinational businesses like Shell, GE, Nestlé and Northrop Grumman, and business-oriented service providers like the ICC, American AAA with ICDR, Asian SMC/SIAC, and Middle Eastern BCDR, are supporting IMI’s innovative efforts and vision in recognizing that collaborative tools such as mediation are the conflict resolution mechanism of the future.  Collectively (also a first for dispute resolution service providers), these organizations are preparing for that future responsibly and in a global manner, recognizing that as businesses transcend geographic and cultural boundaries, so must options for resolving potential conflicts in order to inspire transparency, consistency, credibility and ultimately greater understanding and acceptance of mediation and other collaborative techniques by its future users.    

Legislators are also pushing the collaboration topic.  Diana Wallis, former VP of the European Parliament and strong proponent of mediation in general and the passing of the recent EU Mediation Directive in particular, stated that the European Union is seeking “an alternative form of justice better suited to our modern day systems”[32].  Voicing that mediation is “such an important evolution for access to justice across the EU”, Ms. Wallis consistently urges the European legal constituency to avoid becoming entrenched in legal positions and to solve the professional, traditional, legal and cultural issues which exist to make mediation successful in providing a better access to justice.

Of course, like our businesses before us, once the legal profession’s focus is appropriately recalibrated, the effectiveness of engagement will require real change in relationship-building, not just empathy.  Doing so may create B2B dispute solutions which look like this…

 

…and CSR conflict solutions that look like this…

No matter the context, “business as usual” for lawyers operating in business, government, civil society and as rights holders is simply no longer an option.  Our efforts need to propel us to the point of being viewed as desired problem-solvers rather than as a necessary evil, increase our visibility with clients, and contribute to acting as catalysts towards an interest-oriented culture aimed at defining and obtaining goals, not simply compromises.  Accomplishing visible, bottom-line change in forging a viable alternative to the current hackneyed debate of litigation vs. arbitration -- one effective collaborative stakeholder relationship at a time – is a visionary imperative for the legal profession, an invaluable milestone for business (as well as society as a whole), and one which is well within our collective grasp to achieve.

 



* Ute A. Joas Quinn is Associate General Counsel at Shell International, working on Sustainable Development, Reputational & Societal Issues for Upstream International.  Ute also serves as Chair of the Board of Directors of the  International Mediation Institute.  The views and opinions expressed herein are those of the author and do not necessarily reflect the views and opinions of the author’s employer or other affiliations.

[1] CPR Podcast, interview of Prof. William Ury by M. McIlWrath, dated 23 November 2011, at http://cpradr.org/Resources/ALLCPRArticles/tabid/265/ID/736/IDN-Podcast-No-101-William-Ury-on-Negotiating-Toward-a-Better-World-Nov-23.aspx.

[2] Goldman Sachs Global Investment Research, April 25, 2008.

[3] Advanced Edited Version, A/HRC/17/31, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie,Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (March 2011).

[4] See http://www.cleancookstoves.org/media-and-events/media/clean-cooking-goes-global.html

The Global Alliance for Clean Cookstoves was launched on September 21, 2010 with the help of Founding Funders: Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH, German Federal Ministry for Economic Cooperation and Development (BMZ), Government of Norway, Government of Peru, Morgan Stanley, Shell, Shell Foundation, SNV Netherlands Development Organisation, U.S. Agency for International Development, U.S. Department of Energy, U.S. Department of Health and Human Services (National Institutes of Health and Centers for Disease Control and Prevention), U.S. Department of State, U.S. Environmental Protection Agency, and the United Nations Foundation.  The Alliance currently has 248 partners.  The Mission of this initiative is “[t]o save lives, improve livelihoods, empower women, and combat climate change by creating a thriving global market for clean and efficient household cooking solutions.”

[5] Unfortunately, neither industry nor their counsel are helped by divergent opinions of what CSR actually entails.  As described by the EU Commission Communication “A renewed EU strategy 2011-2014 for CSR”, the EU Commission has defined CSR as “the responsibility of enterprises for their impacts on society” and has stated that CSR includes at least: human rights, labor/employment practices, environmental issues, bribery & corruption, consumer interests, community involvement, supply chain behaviours, and public disclosure of non-financial information.

[6] American Arbitration Association, “Dispute-Wise Business Management:  Improving Economic and Non-Economic Outcomes in Managing Business Conflicts” (2006), Executive Summary available at www.adr.org (http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004327).

[7] Id. at 6.

[8] Id.

[9] ADR Center, The Cost of Non-ADR – Surveying & Showing the Actual Costs of Intra-Community Commercial Litigation (9 June 2010) available at http://www.toolkitcompany.com/Resources%20Center/Docs%20website%20stichting/Onderzoeken/Survey_Data_Report%20cost%20of%20not%20using%20ADR%20EU%202010.pdf.

[10] TheCityUK, Dispute Resolution in London and the UK, at 4 (September 2010), located at www.thecityuk.com.

[11] Georgia-Pacific’s ADR Program: A Critical Review After 10 Years, Dispute Resolution Journal, May-July 2005 - updated courtesy G-P.

[12] Simon, Barry, “Are Businesses Missing the Dispute Resolution Boat?  A Study Underscores Lack of Early Intervention Usage”, published at http://www.mediate.com/pfriendly.cfm?id=1614.

[13] “The Use of ADR (Alternative Dispute Resolution) in Maryland Business”, published by Maryland’s Mediation and Conflict Resolution Office (MACRO) (www.courts.state.md.us/macro/index.html).  Study of 105 companies with staffs ranging from more than 5,000 to fewer than 250.

[14] Simon, Barry, “Are Businesses Missing the Dispute Resolution Boat?  A Study Underscores Lack of Early Intervention Usage”, published at http://www.mediate.com/pfriendly.cfm?id=1614.

[15] Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters (Cross-Border Mediation Directive).

[16] Round Table Mediation & Conflict Management of the German Economy (see www.RTMKM.de).  Established in 2008, this group is a forum of representatives of German companies in the area of mediation and other forms of conflict management, independent of any associations.  Current members are E.ON, SAP, Audi, Siemens, Deutsche Bahn, Deutsche Bank, Bombardier Transportation, Areva, the Fraunhofer-Gesellschaft, Deutsche Telekom and E-Plus Group.  The Roundtable receives academic support from the Institute of Conflict Management, Europa Universität Viadrina, Frankfurt a.d. Oder.

[17] Id.  See also Mallick, Drew L., “U.S. Corporations Should Implement Inhouse Mediation Programs into their Business Plans to Resolve Disputes”, an excerpt from Don’t Think Twice, Mediation’s All Right: United States Corporations Should Implement In-House Mediation Programs into their Business Plans to Resolve Disputes (2007), at http://www.hnlr.org/?p=120 (describing inhouse mediation programs and statistics of Toro Company, Wells Fargo, U.S. Postal Service (REDRESS), Air Products and Chemicals, Inc., and Johnson & Johnson).

[18] Simon, Barry, “Are Businesses Missing the Dispute Resolution Boat?  A Study Underscores Lack of Early Intervention Usage”, published at http://www.mediate.com/pfriendly.cfm?id=1614

[19] Mayer, Bernard, Staying with Conflict:  A Strategic Approach to Ongoing Disputes (John Wiley & Sons, Inc. 2009).

[20] Jones, Tim and Dewing, Caroline, Future Agenda:  The World in 2020, at 279-83 (Infinite Ideas Limited 2011). 

[21] Future Agenda described these prongs as follows:

  • Seeing the bigger picture – before one can start to take decisions on potential future focus, a clear overview needs to be gained, combining what is known from within one’s own industry and what can be learned from outside of one’s industry that could have potential implications (e.g., Shell’s “inside-out”, “outside-in” views)
  • Challenging existing views—strong views are built up from years of experience and form the basis of core strategic assumptions. Existing views need to be challenged as well as supported to identify weaknesses and gaps in strategy (e.g., GE’s “seeking to destroy your own business” approach)
  • Accommodating wild cards—Any assessment should look not only at high-impact, high-probability futures, but also high-impact, low probability events as a source of major change in the future (e.g., Nokia’s “What if?” scenarios, like the 2010 volcanic ash cloud in Iceland which halted all air traffic).  By looking at possibilities, not only probabilities, early warning systems can be set up for the future
  • Building scenarios—Scenarios are not predictions – they are intended to stretch thinking about both opportunities and obstacles which the future may hold so that one can imagine how to shape better futures ourselves.
  • Identifying growth opportunities—this is exploring key options and implications to drive innovation.

[22] http://international.lawsociety.org.uk/files/Ruggie%20panel%20discussion%20summary.pdf (Summary of the Panel Discussion:  “The Ruggie Guiding Principles on Business and Human Rights:  What Do They Mean for Lawyers?” (The Law Society of England and Wales, 5 July 2011)).

[23] Advocates for International Development, LAW FIRMS’ IMPLEMENTATION OF THE GUIDING PRINCIPLES ON BUSINESS & HUMAN RIGHTS: Discussion Paper, p. 7, 17, Nov. 2011 at http://a4id.org/resource/report/guidingprinciples

[24] Cf. Pitts, Chip, “Authentic Leadership:  The Lawyer’s Role in Corporate Social Responsibility, Business and Human Rights” (Blog), 11 October 2011, at http://www.l4bb.org/Blog95A5M8/blog_topic.php?action=view_topic&list_num=1&people_id=&people_name=Chip%20Pitts&people_title=Lecturer&people_institution=Stanford%20Law%20School%20USA%20&%20Oxford%20University&people_location=Oxford&people_country=United%20Kingdom&formatted_people_registration_date=9%20November%202010&topic_id=2&category_id=&cur_page=').  See, e.g., Nocera, Joe, “BP Makes Amends” (NY Times article, Jan 12, 2012) at http://www.nytimes.com/2012/01/10/opinion/nocera-bp-makes-amends.html?hp (“The Gulf Coast Claims Facility has the potential to serve as a model for handling future industrial accidents. It has proved that it can compensate victims quickly and fairly without the ordeal and cost of litigation. But, for that to happen, it’s not just companies that have to put aside their greed. So do the lawyers.”). 

[25] See, e.g., http://www.rejoiceinthelaw.com/visionary-lawyers/, for a site that espouses visionary lawyers.

[26] Maister, David H., et al., The Trusted Advisor, at 25-26 (The Free Press 2000).

[27] Susskind, Richard, The End of Lawyers?  Rethinking the Nature of Legal Services, at 224 (Oxford University Press 2010).

[28] Edelman Trust Barometer, 2012 Annual Global Study, at http://trust.edelman.com/about-trust/.

[29] Movius, Hal, “How Best to Restore Civility?”, CBI Reports (Spring 2011), at http://cbuilding.org/blog/2011/how-best-restore-civility

[30] Susskind, Richard, The End of Lawyers?  Rethinking the Nature of Legal Services, at 272-73 (Oxford University Press 2010).

[31] MacFarlane, Julie, The New Lawyer:  How Settlement is Transforming the Practice of Law (UBC Press 2008).

[32] ERA Academy of European Law, Cross-Border Mediation Conference dated 24-25 March 2011, at

 

[33] Mayer, Bernard, Staying with Conflict:  A Strategic Approach to Ongoing Disputes (John Wiley & Sons, Inc. 2009).

[34] “Shell vs. GE: The Employer-Contractor Debate:  The Best Way to Resolve Conflicts”, Wolters-Kluwer Corporate Counsel Dispute Resolution Webinar (Nov. 2011), at http://view6.workcast.net/?pak=2463218220519480.  See also generally http://corporatecounseldisputeresolution.com and http://IMImediation.com for other B2B dispute solutions.

[35] Quinn, Ute A. Joas, “Turning the conflict situation into better governance”, presentation at World Legal Forum: Managing Corporate Conflicts: from threat to opportunity for sustainable business” conference (December 2011), at http://www.worldlegalforum.org/cms/index.php?option=com_content&view=article&id=77&Itemid=89.

[36] See Schonewille, Manon A. and Fox, Kenneth H., “Moving beyond ‘Just’ a Deal, a Bad Deal or No Deal”, at 83, in Ingen-Housz, Arnold, ADR in Business:  Practice and Issues across Countries and Cultures, Volume II, pp. 81-116 (2010 Kluwer Law International BV, The Netherlands) (“Many parties work hard to divide value rather than creating more value to share.”). 

 


 

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