Are Law Firms the Dispute Resolution Shoemaker’s Children?


Are Law Firms the Dispute Resolution Shoemaker’s Children?

Lawyers and law firms frequently help clients create structures to address and resolve conflict, whether between the client and other persons or internally within the client itself. In doing so, we are conscious to encourage the client to go beyond simply addressing their legal rights and obligations, and to take into account broader business considerations such as commercial and employee relations or broader public profile.

Of course, law firms are just like other organizations in that they do from time to time experience their own conflicts both externally (clients or other counterparties) and internally (with employed lawyers and staff, and between partners and the firm). While it might be expected that firms would be at least as good at organizing their own affairs as those of their clients, arguably this is not always the case. Just as for clients, lack of effective conflict management policies and practices can expose firms to significant economic and reputational risk. A few hypothetical examples may demonstrate the issue. (As said in the media-world, “Any resemblance to actual individuals, living or dead, is entirely coincidental.”)

  • A senior partner uses language and makes the kinds of jokes that seemed to entertain at least some of his colleagues in the 1970s and 1980s. These now cause offence/cringe reactions amongst most lawyers and staff. Some raise the issue with the “reporting partner” for such matters. They are told, “I hear you, but that’s just him, he’s always been that way. He’s harmless.” And nothing is seen to change.

  • Two partners in a medium-sized firm practice in closely adjacent fields, such that many of their matters could reasonably be handled by either. While they are somewhat cordial to each other when in the same room, in conversations with other firm members each speaks dismissively (and perhaps disparagingly) of the other.

  • None of the partners in a small but successful practice group participate in the decision-making process for allocation of firm earnings. The most senior of the practice group partners goes for lunch with the firm’s managing partner to raise their concerns, and is told, “I hear you. I’ll be sure to take these concerns into account in next year’s allocation.” The firm’s remaining partners feel betrayed when six months later the practice group decamps for a rival firm across the street.

Why do these scenarios continue to arise (because they certainly do)? Is it because the firms in question have not formulated processes to allow conflicts to be addressed in a collaborative, restorative and measured manner, or (worse) have formulated such processes but fail to follow through when issues arise? When the only approach that is practically available is seen as a “nuclear alternative” (e.g., a public human rights complaint, the formal expulsion of a partner from the firm, or other groups splitting off and the firm ultimately dissolving), individuals and firms often choose to avoid and defer rather than to act, thereby allowing conflicts to fester.

How can law firms address the “avoid or blow it all up” situation? When advising a client, we would recommend (and probably help draft) mechanisms for initiating early internal conflict resolution processes, which include paths that are explicit (not just unwritten understandings), that are consensual (at least in their initial phases), that engage open communication among all relevant players, and that are actually followed even in what are seen as the “hard cases.” If this is good for our clients, why not our own firms?

This article is necessarily too short to do more than identify the issue and point to possible approaches to solutions. Hopefully this will serve as a prompt: don’t wait for the conflict to arise before designing a process — address the potential need now, and make a formal written commitment.