„Resolving conflicts in a better way“ – This is the headline of a Munich tabloid newspaper today.
Well, that sounds interesting to me. After all, as lawyers we deal with conflicts on a daily basis. As a rule, we try to resolve these conflicts by applying the relevant laws. That means that we ask ourselves: Who is right?
Strictly speaking, the objective clarification of the legal situation is not our main concern or the main concern of our clients, but our goal is to get the best out of a – mostly economic – conflict for our client; after all, that is what we are hired and paid for.
“Resolving conflicts in a better way”, on the other hand, starts from a different background, namely conflicts in private relationships. Here, the intention of one party is not to “take advantage of the other one”, but ideally both parties want to live together peacefully and happily again (in the future).
Nevertheless, are the recommendations on how to argue better, which are conveyed in the newspaper article, sensible and correct, and above all: Can these recommendations also be useful for the practice of a business lawyer? Let’s take a closer look at the mediator’s advice:
1. Address conflicts early on
a) If you notice that a conflict exists, you should seek clarification as early as possible and not wait until too much anger and discomfort have built up about the other person. This is the expert’s advice.
b) Transferred to the area of commercial law, this means: If you notice that your business partner is not properly fulfilling his/her contractual obligations, then address this at an early stage. Do not wait until the situation becomes completely unbearable for you.
Defects and errors do not usually disappear by themselves, but tend to get worse. A few days’ delay quickly turns into a few weeks’ delay, and “sloppily” invoiced expenses soon turn into expense fraud if the issue is not addressed early on.
Here it is advisable to intervene in good time. In the area of labor law, a clarifying discussion would first be followed by an informal warning and then later by a formal warning (Abmahnung). If you as an employer want to terminate an employee because he violated his duties at work, a preceding warning is usually a compelling prerequisite.
2. Prepare the dispute resolution talks well
a) If a discussion is to be successful, the surrounding circumstances should be favorable. As a rule, conflicts cannot be resolved in between two more important commitments. Instead, enough time should be set aside for such a discussion, and the right time at that. A person that is overly tired and has a headache does not like to negotiate and often does not negotiate well.
b) We also know this from business meetings. At least in the past, when such meetings actually took place in real life. The meeting room is often the largest and brightest room in a law firm. And when it comes to catering, larger law firms in particular like to „splash out“, so to speak. Rarely do you get such delicious salmon appetizers served as by your toughest negotiating opponent!
People who feel comfortable are more likely to make concessions. A pleasant atmosphere promotes the conclusion of a business deal or, in our field, an amicable settlement.
3. Initiate dispute discussion with a positive note
a) This sounds almost banal, but the expert recommends that we start a conversation by asking the other person how he or she is feeling.
b) I don’t think we need to say too much about this. It should go without saying that, even in the legal or business sphere, you don’t start off by hurling the most serious accusations at the person you are having a conversation with. Even in court, I have often experienced that when you travel to an out-of-town appointment, you are first asked by the court or the opponent how the flight was – that is, back when one was still allowed to travel.
To set the mood, why not praise opposing counsel for how good and up-to-date you think their website is? Even parties in conflict who take opposing positions usually have common points of interest. For example, the Corona crisis that everyone is suffering from. Or the soccer club that you both like. A positive start to the discussion sets the right course and sometimes works wonders.
4. Convey your own view in the dispute discussion
a) Now this is a very important point: In the private conflict conversation, you should describe things from your own perspective, i.e. say what you yourself don’t like about the other person (or about a certain situation), how you yourself perceive a situation, etc.
The idea behind this is as follows: In a private argument, one should not set oneself up as a judge who explains to the other person what is objectively right and how the world works. To assume such a role is presumptuous and arrogant.
b) However, legal disputes usually proceed in such a way that everyone claims to be right, to see things objectively correctly. Among lawyers, it is rather rare to concede something without necessity and to admit one’s own mistakes.
Experience teaches that once a concession has been made, there is no getting away from it later, and it is highly doubtful whether the other person will actually honor the concession with a concession of its own. An admission is an admission, a confession is a confession. Both often lead to losing the legal battle and being convicted in court.
So on this point I see a big difference between private disputes in partnership relationships on the one hand and legal, juridical disputes on the other: Lawyers tend to admit nothing. Lawyers do not describe their legal views as subjective opinions, but like to “sell” them as the objective truth supported and substantiated by law and justice. Lawyers are always right virtually by profession. They look for the faults and the blame in the other person.
Perhaps it would sometimes be helpful to be a little less opinionated, but perhaps not. After all, a more “self-critical” attitude will only lead to a conciliatory ending if the other side is willing to return the favor. Otherwise, the person who reveals his own weaknesses will quickly become the loser in the economic context.
5. Speak with and not about the other person
a) Do not talk about the other, but with him or her, the newspaper article says. You should not speculate about what the other person is thinking and up to, but ask him or her about their real interests and respond to their concerns.
That is also a core element of mediation, that you try to explore the true interests behind the positions. What is the other person actually interested in? What is important to him/her, what does he/she value?
b) In my opinion, this is a very correct and important approach to private conflicts, but it is only partially suitable for legal disputes. Indeed, such an approach presupposes that both sides are willing to reveal their true interests and motives. In other words, in order to be able to talk openly and honestly with the other person, one must have and be able to show a fair amount of trust. This is often not the case in business and legal contexts, where a “healthy dose of mistrust” is quite appropriate.
In fact, legal negotiation strategies are often based on not revealing one’s own goals and intentions so as not to give the opponent the opportunity to thwart them. In this sense, a legal dispute is comparable to a chess game. A good chess player will not reveal his strategy and tactics to the other, but rather conceal them; in order to then, if you want to put it that way, ambush and surprise the other.
Do you realize, we are almost using a terminology of warfare here. But sometimes, even in legal disputes, one can have the impression that the other party is primarily interested in defeating the opponent. If you are dealing with such an opponent, it would be naïve to put your own interests openly on the table right at the beginning of the conversation. So you have to get a clearer picture of your opponent before you engage in such an open negotiation.
6. Listen attentively to the other person during the discussion
a) For the expert in our newspaper article mentioned at the beginning, openly listening to the other person and a desire to understand him or her are the keys to settling conflicts. A genuine interest in the other person is the best prerequisite for reaching an agreement.
b) I would like to confirm this for conversations, negotiations and even legal disputes. It is always an advantage to understand your counterpart, to know his point of view and arguments and also the underlying interests. Those who listen usually learn more than those who talk.
But in a legal dispute, one must not stop at this point. After all, the ultimate goal is to convince the other party or the court of one’s own point of view. And you can’t do that just by listening, you have to take the initiative at some point and defend your own position offensively if necessary.
Have you seen that film (based on a novel by the German writer Ferdinand von Schirach) in which the lawyer questions the police officer who tortured the defendant as a witness in court? This lawyer listens long and patiently, almost sympathetically, as the witness justifies his reasoning that led him to subject the defendant to so-called waterboarding. But this is not the end of the interrogation; the main concern of this defense lawyer is, of course, to convey his own conviction to the court and the other participants, which is completely contrary to the attitude of the witness. Torture is not an appropriate instrument of interrogation, under any circumstances. And this lawyer then makes this very clear when he firmly reprimands the prosecutor who interrupts him: “This is my questioning of the witness, now I will ask my questions and you will remain silent!
At least in a legal context, it is sometimes indispensable to stand up for one’s own views and convictions in a persistent and energetic manner. Not in the form of tantrums, rude invectives and disparagement. Of course, I agree with the author of the newspaper article. These are not appropriate means of confrontation. But sometimes one has to defend one’s own point of view vigorously in order to live up to the expectations that the client has of his lawyer.
a) Resolving conflicts in a better way by addressing them early on, by having well-prepared, open discussions in a pleasant atmosphere, and by listening to the other person and trying to understand his point of view – that is certainly true. The mediator is absolutely right about that.
b) However, two additions seem necessary to me if one wants to transfer this approach to conflict management to legal disputes:
– Too much openness and subjectivity are not compatible with the task and function of a lawyer, who should vigilantly represent the rights of his client on the basis of the (objective) legal system.
– And above all: One should never give up your own convictions and legal positions in the interest of a superficial harmony, but you should stand by what you consider to be right and just.
If I think about it carefully, I believe that this also applies to private conflicts. There, too, there are limits to what can be accommodated; even in the private sphere, you can’t live in harmony with everyone all the time. Not every conflict can be resolved amicably, unfortunately.
Dr. Wolfgang Gottwald
Rechtsanwalt/Attorney at Law
Business Mediator (Chamber of Commerce)