5 essentials for better managing a major conflict (so that it doesn't manage you)

I have been at the coalface of conflicts for over 40 years, and in that time I've learned a thing or two about managing conflicts that?I'd?like to share with you.

When I mention conflict, I am referring to a major dispute which can have serious implications arising from the prospect of substantial litigation. Such major conflict may?occur in business, property or a partnership dispute, matrimonial breakdown or even family?circumstance between generations.

My lived experience of dealing with conflict

Until my early 30s the only real conflict I had ever encountered was as a solicitor handling?litigation for clients. I thought at the time that I knew what empathy was and really understood what clients were going through. With time and experience, I realized that I was wrong.

My own difficult experiences in major conflicts led me to try and avoid conflict for many years?which you the reader probably think is a good thing. It is, if that approach doesn't work against?you.?Each conflict is different. The approach of each legal team in each country is different.

My biggest litigation was in the USA where my company in which I am director, A Pty Ltd, sued?Amazon, eBay, Facebook, Google, HomeAway and Microsoft. Had I sued them earlier than I?did, then a decision in a precedent case relied on against ours would not have had the negative?impact that occurred. Two of these giants fortunately had settled with me and the other 4 won on?what I believe to be bad law that worked against my patent. The experience was immense in the?USA.

My biggest lessons, however, have come from Australia where different strategies applied have?been successful.

I have been an advisor in many aspects of conflicts and have concluded that the greatest threat to?anyone involved in conflict and litigation is not understanding how to proactively manage it so?that it doesn't manage you, or your client, involved in it.

The most important thing I have learnt is that avoiding conflict is not the answer.

Addressing?conflict as early as possible with a strategy that meets well-considered needs and goals of our or any client in conflict in an assertive, and fair way, is fundamental.

With objective and independent advice, as well as proactive management, our clients in conflict can more efficiently and effectively manage life after the conflict is formally concluded.

Below are the 5 essentials for managing conflict with a well thought out and planned strategy being central to how a client in a conflict can seek a better outcome:

1. Objective & independent advice

2. Understanding

3. Strategy

4. Progressing bottom line benefits

5. Proactive management

From my experience, these are the 5 essentials for managing a major conflict so that long term stress is avoided as much as possible. I will delve deeper into each one now.

1. Objective & independent advice

Conflict with the prospect of, or involvement in, litigation is usually accompanied with stress and anxiety arising from the unknown and uncertain, and a feeling of loneliness in seeking to manage a tough situation.

Today, if you confer with your lawyer typically there are at least two lawyers in the room or involved. Often there are other professionals as well, such as accountants, forensic accountants, experts and advisors. You being the party involved in the litigation are then trying to make sense and understand the different views and what is proposed and considered to be in your best interest going forward.

Interestingly, if you had a medical condition would you go to a specialist by yourself? Hopefully not. You would want to ensure that you have support with you so that together you hear, interpret and reflect on every word to understand your options.

Your conflict is no different, except that it may be that you've been to more medicos than you have had major conflicts in your life.

In my experience, having the advice and support of a person who is adept at knowing when to question and keep the litigation within the confines of a considered strategy for resolving a client’s conflict is crucial.

As a party embroiled in conflict you can too readily be immersed in the litigation and then find the direction and result doesn't accord with your strategic focus and needs.

As a conflict manager we objectively review a client’s conflict and goals to independently advise from the time of being involved through to conflict finalization. We call this “active advice” as we usually test our advice, once accepted by our client, and where possible gauge the interest and response of the other party.

As a conflict manager, we negotiate on our client’s behalf with the other party or parties or your professional team. All negotiations arise from advice and support of an agreed, respected and considered approach with our client in any conflict.

We are your sounding board and your guide; a separate voice with conflict experience to ensure the professional advice you are receiving is best placed to meet your goals, and advisors on the best course of action for you to be taking.

Whenever possible, providing it is in our client’s best interest, we seek to have our clients avoid litigation.

Importantly too, with the right support a party in a conflict can, with a clearer head, focus on other daily activities outside of the conflict that hopefully are more rewarding.

2. Understanding

Getting proceedings right so that a client is in a strong position is hard enough for the most skilled legal practitioner. Solicitors and barristers are driven to do what they consider is best tactically from a legal perspective. If they are consulted as part of a team with a focus on your end goals that meet your strategy for dealing with your conflict, the drivers may be different in the approach, time, costs, outcome and importantly, your long term consequences in the litigation as well as the overall conflict.

By way of clarification, the litigation is the legal proceedings. The conflict involves the litigation as well as the relationship that exists before, during and after the litigation is concluded.

This difference is particularly pertinent where family relationships are involved and need to be maintained.

Our focus is always the conflict which ensures that the litigation, if needed, is managed with the bigger picture in mind. Even if at the time the relationship is thought not to be important, it is crucial it is taken into account where possible which is an important balance needed, particularly in challenging times of litigation.

Finding the right strategy and goals starts with unpacking the foundation of the conflict.

A conflict manager is there to consult and coordinate with all the professionals to ensure all of them are on track and in sync with the needs of our client – which may change and evolve as the conflict evolves. For our client, it is about understanding the processes and consequences measured against the agreed strategic goals and limiting, where possible any negative surprises.

Get this right and our client’s position post the conclusion of the dispute will be far better. Get it wrong and out of sync with the client’s strategy and goals and it's just not the costs of the litigation and the result that may be of concern, but a client being left to wonder why the situation wasn’t addressed differently.

I understand from personal experience the concerns arising from that latter feeling and situation. My approach in aligning understanding, advice and strategy with planning, goals and action for all in the team has seen measurable success.

3. Strategy

Establishing a strategy at the outset is the key to getting the result needed. Strategy drives clarity, efficiency and strength. It is more than just settling a legal dispute which may leave remaining concerns in the conflict.

Having a strategy allows the litigant, the legal team and all professionals to focus on how best to get to the end result required. It is the strategy which should be driving opportunities for resolving a client’s conflict as efficiently as possible.

It is not just the legal interpretation of a dispute that drives how a client should progress to the outcome sought.

Get the strategy right and the actions will then be determined. It is not just a matter of how a client stand’s legally but what is pertinent in addressing your goals for the long term.

Particularly in family orientated disputes, it is understanding the foundation of the conflict and needs of the parties that govern the strategy, goals and outcomes to be sought. The approach to the law and negotiations are then shaped in accordance with how best to progress in a way that will be most effective for you.

4. Bottom line benefits for you

The involvement of a conflict manager ensures a better bottom line for you in your conflict by more focus on:

• i. An outcome sought in accordance with an agreed strategy and our client’s required goals. A conflict manager’s role is to plan with a client the options to maximize their position and/or limit downside as much, and as soon, as practicable. Where possible, and it meets our client’s goals, pre litigation settlement should be sought;
• ii. Better planning, measurement and accountability in the professional costs incurred, including that of a conflict manager;
• iii. Value adding in what a conflict manager can contribute in working with, and supporting our client with experience and follow through to completion. A conflict manager’s role is to continue to evaluate performance and ensure added value and support in accordance with our client’s objectives through to conclusion.

5. Being proactive, positive, strong and forthright

These are key attributes of a conflict manager in every aspect of our involvement in the conflict for a better outcome. Any conclusion sought should, ideally, be final for our client’s conflict and not just their legal dispute. This holistic approach ensures peace of mind and settlement as much as possible rather than allowing the matter to fester for another day which doesn't bring the conflict to an end.

So in closing, as a conflict manager we say manage your conflict assertively with support, understanding and strategy for a better outcome. This limits bad surprises and allows for better managing the conflict so that it doesn't manage you.

Dennis Benjamin B.Ec. LL.B. NMAS is the principal of Conflict Manager.

Dennis is a lawyer by profession and an experienced business person who understands the stresses and challenges of being in a major conflict. Conflict Manager was established to apply the experience of how, what and why support, strategy and management of the conflict leads to a better outcome for clients.