Transforming Disputes into Transactions via Collaborative Law

Dispute Settlement Counsel by Michael Zeytoonian.

When I work with people to help them resolve their disputes, I often find that they are very preoccupied with finding fault and placing blame for what has happened to trigger the dispute. We spend a lot of our energies, time and emotion – clients and lawyers alike – looking backward at what happened and seeing who we can hold liable.

In cases where liability is an issue, this is a necessary part of the legal analysis. It is one of several factors that are relevant and will play a role in the ultimate resolution of the matter. Many cases in which there was possibly a wrongful act or a failure to do what should have been done break down into two analyses – who bears the liability and what was the measure and amount of damages sustained. While it is an important component in dispute resolution, often when clients are too wrapped up in finding fault, it becomes counterproductive.

When too much of our present collective focus is on the past, the future is at risk. Being overly preoccupied with what is in the past takes away from our ability to focus on the present situation as well as what is in the best interests of the parties going forward.

When a couple in a divorce dwells on what happened in the past to the point where it detracts from their present needs and the well-being of their children, the future is sacrificed. When a party in a business dispute uses litigation to grind down the other side as revenge for what happened in the past, the present has been disarmed and the future is being weakened.

As a lawyer, Abraham Lincoln often pointed this out to his clients and other lawyers, advising them to “discourage litigation”, because it often resulted in an outcome in which “the nominal winner is the real loser in terms of costs and lost time.”

Too often, I find myself working to refocus clients from their preoccupation with finding fault in every little thing the other side did wrong to the bigger picture of satisfying the clients’ true interests and goals. As lawyers who specialize as Settlement Counsel or Collaborative Counsel, we frequently find ourselves reminding their clients as well as our counterpart attorneys to not be so preoccupied with winning all the little skirmishes that they risk losing the war. In dwelling in the past, we emasculate the present and lose sight of our goals for the future.

During World War II, when Great Britain had sustained heavy losses at Dunkirk, many were looking to seek recriminations and point a finger here or there. Great Britain’s fiery leader, Winston Churchill’s insightful comment helped re-calibrate the focus of his people:

“If we open a quarrel between the past and the present, we shall find that we have lost the future.” – Winston Churchill

The adjustments we make in the present to respond to things that occurred in the past do help to shape the future. But those present actions and present attention needs to be driven by future considerations and motivated by the achieving of one’s goals, not rooted in past events that cannot be changed. It’s a subtle distinction, but it decidedly impacts the efficiency and the clarity in how we address disputes, and certainly impacts the quality and creativity of the outcome. How we approach a dispute and our focus on the future rather than the past helps transform the nature of the dispute resolution from a series of small skirmishes to problem solving steps, and from an adversarial war to a creative transaction.