In our respective professional lives, each of us have had a fair experience of the approach that advocates have towards in-house counsels and vice-versa. In considering the relationship between these ‘two’ groups of legal professionals, the field of alternative dispute resolution or ADR is a large ground which occasions the interaction between the insider and the outsider. We have seen how ‘the approach’ unties good practice and good relations between the two groups when inherent biases manifest themselves. We, as trained professionals in mediation and negotiation, are well aware of the principles and techniques involved in bridging the gaps. An application of these fine principles to the divide between the insiders and outsiders, we thought, could draw an interesting dialogue between us – one on one, across the table, thrashing out predispositions that come from each side against the other – with Tanima coming to the fore through her in-house perspective, and Gracious from the other end with his standpoint as an advocate.
We commissioned ourselves to respond to four basic complications about the broken connection between the two groups that arise in the ‘way in which corporate counsel and outside counsel can work together more efficiently and effectively in an ADR proceeding’. Our responses come through the lenses of our training; our interaction and exchange with peers and seniors; perceived behaviour and attitude of others in the profession, and of course, our personal experience. Putting these prejudices one against the other, we felt that these complications, like the proverbial elephant in the room, muster a huge interference with the ‘inside-outside’ connection. It compelled us to try to understand the undergirding signs which create these disturbances and draw some conclusions about the best way forward that would fully support ADR proceedings in an efficient and effective way. Here’s turning to an interesting dialogue between a corporate counsel and an advocate expressing the stereotypes of their respective occupations pitted against each other.
‘Tuning into the Right Channel’
Inside Counsel: “There always seems to be a viewpoint that advocates share about corporate counsels being ‘inferior’. Many outside counsels regard in-house counsels as nothing more than a client, and not a co-counsel. It is offensive and unfair.”
Outside Counsel: “A typical engagement between corporate counsels and advocates often circles around on the advocate’s billable hours; the number of associates he can and cannot engage; unreasonable demand for results, and panic over updates, as if these details will solve the problem. It is overwhelming and heavy-handed.”
Effective communication leads to a clear understanding
The position occupied by an in-house counsel is that of a member of the corporation. Their job description requires them to represent the management’s point of view – its corporate goals and business policies. However, this strong connection in the corporate hierarchy doesn’t correspond with solid ties between the in-house team and the advocate. These channels are, generally, not tuned to the right frequency. As a result, practitioners work very hard, and at times, a fair amount of it has nothing to do with what the client really needs. The problem and the underlying needs remain baffling until advocates get closer to understanding the client, their business, and needs, through the medium of the in-house team. This is hazardous and detrimental to the overall dispute resolution process. It is important for both counsels to keep aside their respective hats and understand that they’re both part of the same team. Otherwise, all the advocate is doing is nipping around the edge of the core problem, leading to a rise in dissatisfaction, costs, and time, which are antithetical to the use of ADR. It would, thus, be of great help if the advocate were to acknowledge the in-house counsel’s contribution and include him/ her in the ADR process by understanding that he owes a direct responsibility to the in-house counsel just as the duty is also towards the corporation. The acceptance of this role only encourages resonance – a quality in communication of being deep, full, and reverberating.
‘I do My Thing and You do Yours’
Inside Counsel: “Advocates refuse to acknowledge that corporate counsels do handle dispute resolution matters for the corporation on a daily basis, and that the in-house team has an understanding on the risk appetite of the company. When it comes to dispute resolution proceedings, corporate counsels need the timely updates so that they can map them against the company priorities and chart out the best way forward. We’re sometimes compelled to make abrupt decisions, disregarding outside inputs.”
Outside Counsel: “More often than not, there are certain critical technical details involved. Corporations engage counsels precisely for the advocate’s subject matter expertise in ADR. While corporate counsels may have a commercial understanding, they do not, for instance, have the depth of legal knowledge in arbitration law and practice that attorneys can offer after having seen the same area of law being debated and argued from every possible perspective. In-house counsels don’t need to teach advocates how to do their job.”
Understanding boundaries and demarcating the scope of work
Regardless of the domain expertise of both, the inside and outside counsels, it is important to recognise the fact that neither can suffice alone. It is a combination of both, the commercial and legal sense, in good measure that makes it an excellent approach to ADR proceedings, especially mediation. And taking a step further, the approach necessitates – recognizing that practices vary greatly between legal departments and law firms, and identifying definite matters and areas (or its combinations) which should be referred to outside counsel and those that should be purely handled by the in-house team. For example, the outside counsel can evaluate and categorise the nature of disputes suitable for ADR processes while the corporate counsel provides a risk assessment of the company in entering ADR processes. Why is this logical? One reason is that an outside specialist advocate handles problems that are constantly arising in multiple situations, an experience one does not expect to find in a corporate legal department. With law firms, generally, specialising in several areas of the law, their knowledge is up-to-date of those voluminous and complex legal precedents and provisions. Secondly, advocates can allocate more time to the subject through the available resource of specialists and dedicated teams for arbitration and mediation. At the same time, the in-house counsel brings shape and structure to the strategy of the advocate’s work by juxtaposing it within the framework of the company’s needs and goals. Thus, bringing in-house counsels on-board strategic discussions concerning ADR proceedings are indispensable. This is principally true for mediation proceedings where both the lawyers necessarily need to be on the same page about the corporation’s position and interests; the hierarchy of issues; their understanding about other side’s position and interests; both parties’ best and worst alternative to a negotiated agreement; the discounts and options, etc. What may seem of prime importance to an outside counsel may not always be the priority of the company – ‘winning’ an arbitration matter in whole might be secondary to securing an injunctive measure against a party, only to send a subtle message to compel the other side to come to the negotiating table. While the advocates may deploy a resource galore to work on a case and play on the technicalities of law, it is the job of the in-house counsel to evaluate whether the ‘shot-term pros’ outweigh the ‘long-term cons’, ensuring business longevity while optimizing costs.
There’s one more thing specific to ADR proceedings which demands prudence – preventing the abuse of relationship. There are tendencies which may appear on both sides to wrongly assume a role or decision which is more appropriately left to the other. This is potentially detrimental and must be avoided at all times. It would help if the in-house and external counsel both clearly identify their roles early on and respect the other’s expertise.
‘Meeting the Expectations’
Inside Counsel: “Publishing an impressive client list with decorative monograms is not enough to satisfy an in-house counsel. While the past accolades may get an advocate an initial foot in the door, it is up to them to prove their worth by not asking to be spoon fed about procedures and basic guidelines. Being punctual for meetings, delivering non-plagiarised research, respecting deadlines should be second nature to advocates. It comes as a disappointment when the quality of work doesn’t justify high price that was paid for the services in dispute resolution.”
Outside Counsel: “It is common that outside counsels are kept in the dark as to facts, or to the plans and desires of the company, which is detrimental to ADR proceedings where clarity of facts and positions are fundamental. And as for costs, it is also seen that in-house counsel usually breathe down the advocate’s necks to get the work done, while at the time of payments, corporate counsels sleep over invoices and cite ‘internal processes’ to justify delays. If the expectation from the outside counsel is to be fair, the corporate counsel must take professional responsibility, and make their expectations clear.”
Stop ‘expecting’ the others to fit your idea of who they are and what they should do
An inside counsel is the one who is expected to brief the outside counsel for all matters being referred. The task gets much easier if a long-term outside counsel is made familiar with the overall operations of the company so that a general familiarization does not have to occur every time a new matter arises for being referred to ADR. While it is not always practically possible to familiarise the external counsel with all the operational aspects of the company (or merely rely on creating a manual of any kind), it is strongly suggested that there be a pre-transaction conference with the discussion focused entirely on context and priority setting. This will ensure that both sides have the opportunity to come on the same page, with the in-house counsel clearly laying down the expectations and the outside counsel having a chance to clarify any doubts and queries they may have in this regard. This could potentially serve as an ice breaker for the larger extended team to familiarise themselves with each other. After all, they are going to spend the next few months interacting over frantic emails and panicked phone calls.
‘When Do You Call the Doctor & What Do You Do Till Help Comes’?
Inside Counsel: “Advocates are often last-minute with their delivery and execution of work. Occasionally, their answers are incomplete, out of context and their suggested course of actions not satisfying. Arbitration cases are often jettisoned with tons of documentation for the sake of making the submissions. And it is often that cases that start out simply, under consensual efforts, become unexpected monsters.”
Outside Counsel: “How in-house counsels react during the early stages of a dispute can often dictate the outcome of a case, especially, since the success of an ADR method like mediation is hinged on the right timing. Bad timing may mean that that the corporation entangles itself in a massive lawsuit. What makes it worse is that corporates think that they can just dump their aggravated problems as if the advocates are magicians who can easily fix things and set everything right. ”
The ‘beginning’ is the most important part of the work
Advocates should be the first resort and not the last to be approached when a potential crisis is brewing. Timely legal help can help salvage an issue much before it snowballs into a complex litigation. It is understandable that corporate structures and the number of layers in decision making can be a time-consuming exercise. Still, the in-house legal department must establish a quick referral mechanism to enable an effective start of ADR proceedings. One of the first things an in-house team needs to do is to get control of the use of an advocate to make sure that corporations do reach out when they don’t have the relevant expertise in-house – when there’s no expertise in sending and replying to legal notices or in initiating a mediation or arbitration; drafting a mediation or arbitration agreement; appointing a mediator or an arbitrator; choosing the right institution to conduct ADR proceedings, etc. Thus, an in-house counsel’s initial approach is extremely crucial for an effective and efficient commencement of an ADR proceeding. This includes screening matters at the outset; timely discussions of potential consensual dispute resolution efforts, and extrapolating the problem’s future course where consensual efforts fail. This is particularly comprehended for mediations since its success significantly depends on the decision to mediate (when, where, how, what, etc.).
An organized dispute management system may, therefore, be crucial in building a durable case in arbitration. Where a referral to advocates is in process, in-house lawyers can begin collating relevant documents for an imminent arbitration proceeding (this is helpful whether the company entrusts the arbitration to an outside law firm or uses an inside counsel). Since the in-house team is familiar with the commercial and operational aspects of the company, they can ensure a better collection of documents from the various business teams that are involved. This includes identifying crucial documents; screening them for privilege; collecting and copying them for production, and organizing them by subject matter. An arbitration is half-won if counsels are in control of the requisite paperwork.
A candid discussion got the both of us unearthing what we suspected – long-standing prejudices that have drastically interfered with the relationship; prejudices that are better forgotten and views that can be better reconciled in order to deliver the best results. The larger picture of this relationship makes us believe that these misunderstandings have overshadowed the relationship between the two groups, thus, making it difficult to consider objectively the question of cooperation between them to conduct effective and efficient ADR proceedings. A root cause analysis of where the problem lies makes it evident that the issue is one of trust and respect for the core competencies that these ‘two sides of the same coin’ bring. With the common goal of acting in the interest of the company, there should not be any difficulty in acknowledging each other’s core domain expertise, the lack of which makes it an egotistical challenge such as the one we experience today.
Summarising what we perceive to be the attributes of a good relationship between the inside and the outside counsel is that the relationship must be premised on a committed professional effort from both sides, which is a guarantor of efficient and effective ADR representation. Both counsels must feel obligated to create an ambience in which the other can be a contributing member while according each one the respect that comes with their respective experience and expertise. The development of corporate legal department was an advantageous change in the legal profession, and today, the complexities of the corporate world and legal practice are necessarily demanding a symbiotic inside-outside relationship. It is needed that lawyers from all walks of life recognise this development; understand it; reason with it, and accommodate it, so that the legal profession as a whole may be strengthened to deliver its best in the field of ADR.
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