Problem Solvers: New Profession

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The collaborative approach in resolving conflicts is more successful than the adversarial approach. This statement is proven real from an international private ADR provider based in the USA[1] and Italy[2].

After almost two decades, the international private ADR providers are releasing data and results collected over fifteen years in resolving conflicts with ADR methods and practicing law in the two countries with two very different legal systems and social cultures, and with the uniqueness to be under the same leadership.

The revolutionary results and the data shared in this article are unique in several important ways.  The two providers are “private,” not public; they practice law and use mediation to resolve conflicts in the two countries; all the providers professionals are trained in law and business in the different legal systems – the Italian civil law system, and the American common law system; the two providers are under the same leadership; the Professionals have handled conflicts involving clients from different cultural backgrounds and most importantly they have all been trained in both the adversarial and collaborative approaches.

The results on how the collaborative approach in resolving conflicts is more successful than the adversarial is proven not only by real data provided by the two companies but also by the increasing number of the clients’ demands to resolve conflicts in an economical, faster and cheaper ways.

Overall the results show how the new generation of workforce in any field (from lawyers to business people, politician, doctors, and teachers) need to learn beside the technical skills of their fields, the skills of problem solvers where the collaborative approach is the" new competition”. Our data show that today’s clients require a new generation of professionals that actually work “with them” to reach concrete, satisfactory, and doable solutions rather than “for them” to get to “a” general solution. To be successful, professionals in 4.0 Era, need to know how to think outside of the box and to look for concrete solutions using the law and get the clients out of the conflicts.  They need to be problem solvers.

The new skills required to be a problem solver include the ability to: assess each conflict under the economical and psychological aspects of each client; know how to interact with others to be able to recognize the emotions involved and identify the underlying issues, and finally determine the most effective method of conflict resolution to reach a satisfactory solution for the parties involved. In resolving conflicts, it is mandatory today to adopt a collaborative approach and take into consideration time, costs as well as the reputation and the health of the parties.

In resolving conflicts both in Italy and the US the Providers Professionals faced the obvious differences of the legal and cultural aspects, but they also realized what the two systems have in common: both are based on an adversarial approach, used in litigation, where ultimately, one party will win and one will lose in the court of law.  After 15 years of practicing law, using the adversarial method of litigation, we learned firsthand that at the end of the day, this approach was not effective, economical, or satisfactory for the parties involved and very stressful for them.  Also for us as attorneys, litigation was very tirying and not productive because clients were never satisfied. No one was happy at the end of the litigation, not even those on the winning side, and of course, garnering the win is not easy and certainly not always possible. Instead we have learned that when we are able to use more collaborative and constructive approaches, in a setting such as mediation, we are able to work with all parties directly. We were able to think outside of the box and understand the real interests and needs of the parties so that we could reach long lasting solutions, in an economical and time sensitive manner. Most importantly, we realized that the parties were satisfied with the process, with the results, and with us as professionals. As attorneys, today, we feel we are part of a bigger picture where the law is actually used to find a solution after the real needs of the parties are clear and we don’t use the law to create new problems.  As professionals we have become more productive, which means more clients are satisfied, so more clients come to us (and return to us).

All of this has translated into revolutionary realizations for us as attorneys and business people: when using the collaborative approach, all parties involved are able to work together to look for solutions, be more productive after the conflicts are resoled, and their physical and emotional health improves. Finally using the collaborative approach instead of the adversarial one, the parties are able to get out of a stagnant situation and look positively to the future.

From the data and experience the providers are able to share the following realizations.

First realization: the legal profession is changing.

The first result of our journey is that the legal profession has changed.  

In the modern era that we call "4.0," the new generation of lawyers need to have skills of problem solvers in addition to the technical skills and need to know how to use a collaborative approach to be able to be successful. This awareness can be applied in any profession and field.

This realization comes from monitoring what the 4.0 (modern) clients are seeking. In fact the modern clients are looking not only for someone with technical knowledge but also someone with concrete skills of problem solvers in order to reach concrete and satisfactory solutions to their problems quickly and cost-effectively.

All of us started our professional careers as lawyers in resolving conflicts in the traditional legal systems, which means using the adversarial approach in litigation. Along the way, some of us “stick” with the traditional adversarial approach of the legal profession and followed the win/loose path of litigating in the court system. Others, despite remaining in the legal world, have changed course and started to look for new ways to resolve conflicts with more collaborative and constructive win/win approaches.   Using mediation as a playground to help their clients to look for alternative solutions (most of the time we were forced to look for alternatives procedures due to the different legal systems and cultures) made us realize what the 4.0 clients wanted: from an adversarial lawyers they preferred collaborative lawyers. This transition was not easy to make because it was much easier to use the law as first hand than to think out side the box and using the law second hand to realize the solutions.

The irony, after many years, is all of us, those who stick with the adversarial approach and those who choose the collaborative approach, have come to the same conclusion:  generation 4.0 lawyers need to be problem solvers: able to work “actively with” the clients based on  their needs  not just “for” the clients.

However, problem-solving skills are not abilities we know and have been taught practice law. Problem solving is a new and real profession that needs to be and can be learned with the right technical skills: it requires to “think out side the box” using the law to realize the concrete solutions. The ability to “think” in today world is a skill increasingly rare. It is based on concepts such as thinking outside the box, active listening, not assuming to know what others think, not getting personal, acting rather than reacting, and reading the personalities and body language of others, which all requires emotional intelligence. The problem solver needs to be able to assess each case with a mind of a “legal thinker” after understand the elements of the conflict. They must determine the optimal method for resolving each conflict without putting professional interests before the interests of the parties and use the law as first response.  When a conflict arises we need to realize that it is only about the parties involved. Lawyers and problem solvers must work with the parties as consultant and legal guidance and let the parties be the ones who know best the conflict and participate to search for a solution. As trained lawyers, we have had to learn to transition from an adversarial role to a more collaborative and constructive one to become problem solvers and legal consultants and help bring practical solutions. As business people, we realize that resolving problems in an effective, economical and confidential way is more productive and helps looking forward.

We have realized that solutions to problems need to be concrete, satisfying, and achievable for the parties, always taking into account the actual consequences of conflicts, that range from economical to psycho-physical wellbeing, both for the client and for us as professionals.

The Second realization: the characteristics of the modern 4.0 clients.

During this professional journey, all Providers professionals worked together and have always remained open to alternatives. We discovered that the clients’ demands are changing very fast and their “wants” have actually changed as well. Obviously, we are not taking in consideration the individuals in bad faith, those who use the law to hurt others and people that need to be in a conflict to function. They majority of the parties involve in a conflicts actually look for someone to resolve their conflict and care about them.

This journey has led to a second result: the characteristics of 4.0 clients.

The demands of today’s clients have changed.  The parties in a conflict view and trust the legal professionals as someone knowledgeable in what the law says but more than that, they are looking for someone to help them find a solution that is economical, fast, and concrete. They are looking for someone who cares. Because the parties themselves are so deeply mired in the conflict that their emotions take over their rational part, they cannot find this solution on their own. We have come to realize they are not so interested in the details of what the law foresees but simply come to end the conflict in a fast, confidential and in cost-effective way.

The 4.0 clients want professionals that care about them and work with them not for them. They are seeking problem solvers. With this understanding we have started to  work with our clients as a team not for them, using our knowledge of the law to guide them. We started to be creative while using the law, to think outside of the box in a collaborative way and to look for solutions that the parties actually could carry into the future.

For 4.0 clients, it is no longer enough to have a technical and impersonal analysis by the single expert (whatever field it is):

·       They want concrete solutions applicable to their case;

·       They want economical analysis;

·       They want to know how long it will take to solve the problem;

·       They want someone who cares.

4.0 professionals (any profession) can either recognize these changes and evolve or they can ignore them, which means they will not be able to meet the 4.0 customers’ demands.  One of the consequences of not adjusting to changes is to be eliminated from the market.

Third and final realization: collaborative and constructive approaches are the new competition.

While the entire world, across fields, is promoting a more and more adversarial and individualistic approach and trying to convince the public that the way to resolve problems is by building walls, we can testify that in the 4.0 era collaborative and constructive approaches are actually the only way to be productive, effective, and therefore to grow.  We have witnessed in real life the benefits of working together instead of as single individual to be able to save money and time and be successful in the future. Of course, opening doors and thinking outside of the box in a collaborative way is more challenging than relying simply on an adversarial approach. However, the results are more positive, not only for the disputants, but also for those around them and this bring the evolution of modern society. 

We have observed an epochal change, from the adversary (win/loose) attitude that characterized the ordinary methods of litigation to a collaborative approach (all winners) of ADR methods, particularly mediation. This approach is increasingly used voluntarily by the parties that have understood the potential of working together towards a solution that lasts forever and enables the parties to move forward rather than remain stuck in an endless legal battle that will not bring any practical solutions. Parties have realized that it is much better to work together to find a satisfactory and realizable solution to the problem rather than placing their future in the hands of attorneys or judge who are bound to interpret and apply the law that pertains to the case but who knows absolutely nothing of the conflict’s consequences in the parties lives.

The effectiveness of ADR methods, in particular mediation, lies specifically in the fact that the parties in the conflict are able to actually work together to reach a solution to their own problem, being the only ones who know what are the real consequences of the conflict.  Based on our experience, mediation can be a good fit for all cases, but without a doubt, the most suitable are low-value, highly emotional disputes, conflicts involving parties from different countries and legal systems, disputes between parties with different cultural backgrounds, those in which the parties lack the financial means to litigate and those where the parties need to maintain a working relationship.

Mediation is recognized as a method that allows parties to manage their conflict in a way that is collaborative, constructive, and effective rather than adversarial and destructive where the key role is the legal profession. This is why it is so important for the new generations of legal professionals to assess the case and work with their clients not just for them.

All the realizations mentioned above are proved by the real data obtained over time and with enormous work.  The data shows the success of the collaborative approach:

Starting with the data on mediation collected by the Italian Ministry of Justice from 2009 to present. The Italian Ministry of Justice has kept data since the Law n.69/2009 and following Decrees n. 28/2010 and 180/2010; Government Decree n.69/2013 and convert in Law n.50/2017 were implemented in the Italian legal system. The Data reported by Ministry of Justice are collected nation-wide from an official database from the  Italian Public and Private Mediation Providers.

In the 2017 the most heavily nation-wide mediated disputes are banking contracts (about 19%), real property cases (about 15%), landlord-tenant (about 12%) and leasehold (about 11%), and approximately 7% of those on medical malpractice responsibility. The party called in mediation appears in 48.5% of the cases and when the parties agree to sit at the mediation table, a mediation agreement is reached after the first meeting in 42.2% of cases. This data are also substantially in line with the previous year.

In general, an agreement is reached in 38% of cases if the mediation is voluntary and in 23% if mediation is mandatory for the Italian law. However, percentages rise to 59% and 42% respectively when the parties agree to meet for a mediation attempt. (In fact, for the Italian law, in case of mandatory mediation the parties need to agree to participate in order to start the actual mediation, on the other hand at the first meeting they can decide to not participate)
With regard to the presence of the lawyer in mediation, in voluntary mediation, the lawyers’ assist 78% of the parties that call and start the mediation, while among those parties compelled by the law to engage in mediation the 82% are also assisted by a lawyer.

As for the time spent from the start to an agreement reached in mediation and litigation the numbers are shocking: mediations last 128 days compared time to get to a judgment in litigation, 882 days. The numbers collected by the single private ADR Providers based in San Diego (USA) and Milan (Italy) confirm the results of using a collaborative approach is more successful than the adversarial in both systems even thou different and opposite from each other. Moreover show that the legal profession is changing and new skills are on demand.

The office provider located in Milan – B.M. srl recognized by the Italian Ministry of Justice and registered as Private Provider P.D.G n.993 results

 

	2014	2015	2016	2017
SETTLEMENT	43.3%	34.8%	33.3%	0.0%
NO SETTLEMENT BUT PARTIES PARTICIPATE	0.0%	30.4%	38.1%	37.5%
NO SETTLEMENT PARTY CALLED NO PARTICIPATE	56.7%	34.8%	28.6%	37.5%
PENDING	0.0%	0.0%	0.0%	25.0%
Total	100.0%	100.0%	100.0%	100.0%

 

In 2014, cases submitted to the provider and resolved by agreement were 43.3%. Those in which the parties agree to participate but did not reach an agreement were 0%, while those where the parties did not appear were 56.7%.

The length of the mediation process did not exceed 90 days. The cost of mediation in relation to the value of individual cases did not exceed 1,500 Euro per party.

In 2015, cases filed with the provider and settled by agreement were 34.8%. Those in which the parties joined but did not reach an agreement were 30.4%, while the mediation in which the parties did not appear and did not reach a settlement was  34.8%. The length of the mediation process did not exceed 90 days.

The cost in relation to the value of the case did not exceed 1,500 Euro per party

In 2016, cases filed with the provider and settled by agreement were 33.3%, those  in which the parties agreed to participate but did not find an agreement were 38.1%,  while cases in which the parties did not appear and did not reach a settlement was  28.6%. The length of the mediation process did not exceed 120 days. The cost in relation to the value of individual case did not exceed 1,500 Euro for each party

For 2017, the data is still being evaluated. Thus so far, cases filed with the provider and settled with an agreement are 0%, those in which the parties participate but did not reach agreement is 37.5 % while those in which the parties did not appear and did not reach a settlement is 37.5%. 25% of the cases are still pending. The length of the mediation process did not exceed 90 days. The cost in relation to the value of individual cases did not exceed 1,500 Euro per party.

Processing the data from the American provider – Bridge Mediation LLC – required a different approach due to the different legal system (common law) and to the high level of litigious culture and legal costs. We reported the data not by years but by actual numbers of cases handled by Bridge Mediation professionals because it was easier and faster due to the characteristics of the common law system, recognition and adoption of mediation as an alternative method compared to the traditional legal method, litigation,.

To handle all the cases the Bridge Mediation team work together with not only the opposite party but especially with the clients in order to look for and reach realistic and concrete solutions. Usually the clients are international, don’t have a big budget to litigate, they don’t understand the legal and cultural system and they need to focus on future productivity rather than wasting time in fighting in the Court of Law.

The 70% of the cases are being solved through cross cultural negotiation and problem solving due to the cultural and legal differences. Before even start any conflict resolution procedure collaborative approach allows the professionals to work together to reach a solution. The average length didn’t exceed 90 days, some time going over 1 year when the parties decide to go through the Court system.

The 10% of the cases started with filing the case in the Court of Law but at the end due to the high legal costs they have been closed through mediation. The length was between 8 months to 1 year.  The 20% of the cases have been solved directly through legal negotiation prior to mediation. 

In 70% of the cases in which the parties agreed since the beginning to use negotiation lasted between 20 and 30 days. The cases that started with litigation and finished with a settlement through mediation lasted between 8 months to 1 year. Finally the cases that go to legal negotiation lasted between 90 to 120 days.

The cost for each party to resolve conflict with mediation is $ 4,000 USD; the cost to go to litigation for each party is between $100,000 to 200,000 USD; and in case of Arbitration is $25,000 USD.

Conclusion:

The final percentage of success of using the collaborative vs. the adversarial approaches are similar between the to two offices taking in consideration the legal and cultural differences of all the cases handled by the team of professionals and are solved through mediation with a collaborative and constructive approach.

The implementation of the collaborative approach as the first choice and the adversarial as the alternative is still a long way to go and full of challenges but the good news is that not only the parties involved in the conflicts increasingly understood the benefits of the collaborative approach used in the Mediation as ADR method of resolving their conflicts but also the modern legislators worldwide recognized the Mediation method accordingly to their legal systems.

All the changes at first are traumatic and require preparation. But when the changes become rooted in our culture or habits and new stability is achieved and the change is accepted there is progress and society moves forward. Change from adversary to collaborative approach is indispensable to ensure the advancement of modern society; this guarantees effective justice, access to substantial justice by everyone, it is more economical, time saving and favors psychophysical wellbeing.

It took us a long time to realize and adjust to the changes of the world and it will be a long way to switch from adversarial to collaborative and to learn how to work with clients instead of for clients but we as an international team of professionals we believe everything is possible.