I think a lot about my chosen areas of the law – both my areas of practices – employment and business law and the disputes that arise in the workplace – as well as the ways in which we resolve these disputes.
In workplace disputes, I represent both employers and employees, largely to be able to see the issues from the perspectives of both sides and have a more objective, balanced view of disputes. I also want to be free to be an advocate for either employees or employers. My role in these kinds of disputes is not that of a hired gun for one side or the other and to see the other side as the bad guy, but rather to either to provide proactive counsel and/or defend an employer that has acted properly or represent an employee who has been wronged.
The opposition in these disputes is not “the other side”, because I don’t see a workplace in terms of having two sides – employees vs. employers. Dividing and polarizing a workplace is never good. The real opposition is whatever it is that is causing a problem in the workplace, whatever or whoever it is adversely impacting the workplace environment. Ironically, the other side is that element that causes employees and employers to see the workplace as having two sides instead of a workplace where everyone works together toward shared and common goals. The goal for me is solving the problem(s) in a workplace that negatively impacts my client. The best result is a solution that creates a better environment than the situation that led to the dispute.
This approach begs the question: Are we fighting the wrong battles? Are we drawing the wrong lines of demarcation? Are we trying to resolve a dispute by using an adversarial contest when that doesn’t make sense? Disputes arise in all facets of life. They are natural. But does a dispute – which can also be an opportunity – have to set up the fight approach to resolve it?
Let’s think about this for a minute (or more). We as lawyers are called upon to help parties resolve a dispute and restore order in the workplace. But the approach we usually use to reach that result – often at the insistence of our clients – is to escalate the dispute by drawing lines between the employer and the employee and using an adversarial process, i.e. setting up a fight, to try to restore harmony and correct a problem. I’m missing the logic of that approach.
Let’s go a step further. Let’s use an analogy and see how this looks.
Imagine you are a father and your two sons are having a dispute and they come to you to help them resolve it. To make it more specific, your two sons are in the family business, they have a good relationship with each other and with the rest of the family, both as to business/workplace matters as well as in their personal and family lives. This dispute arises out of the business. So you give them titles that imply that they are on opposite sides of a fight – something like “attacker” and “defender” – and you also put the word “versus” between their names and titles. And then you tell each of them to retain a good hired gun lawyer and fight it out for the next couple of years.
You also give them a framework designed to culminate in some ultimate event, in which some third party – someone or some group who doesn’t know them or care about them – will determine which of them is the winner is and which of them is the loser. You also give them some rules of engagement for a procedure that requires them to do certain things a certain way and file a lot of information and documents related to the business and the dispute in a public records place. Later, that third party will review all this and lots of other information to help that third party decide who wins and who loses.
OK. Thanks dad.
Now, let’s reimagine that same fact scenario. You don’t give them titles this time and you don’t use the word “versus” anywhere. You encourage each of them to hire a lawyer who is trained in advising people legally and trained in different ways to help people resolve their disputes. You also recognize that your sons may need some expert advice from some expert in an area that is pertinent to what their dispute is about, so you encourage them to hire someone for that purpose and share the cost equally, and you do give that person a title – a neutral, independent expert.
You also give them some rules of engagement, but these rules of engagement are different from the ones above that are focused on forms, an order of steps that must take place, time deadlines to get those steps done and how and where to file lots of papers and information in a public repository where some third parties will review them. Instead, the rules of engagement you give them consist of basic principles and elements relating to the way they will go about resolving their dispute. You also give them a basic structure and some tools for doing this, with enough flexibility built into it so that your sons and their lawyers can adapt the structure to the situation the dispute presents.
Your sons are both pretty intelligent guys and like to have control over things like process and outcomes. They also wisely and for the good of the business and the family want to keep this dispute confidential. You also tell them that they will design the culminating event, the creative result of their collaboration with their lawyers and expert(s). They ask you how long this process is going to take because they really don’t want to tie up the next few years of their lives in a process that drains their energies, resources and emotions. You tell them that how long it takes is totally up to them and their lawyers working together, and will most probably be determined by what their goals are and what it is they are trying to achieve as a final outcome. But you tell them that they are looking at months, not years.
Your sons like this approach. And since you started this company with the goal and hope that they would someday take it over and build it further, so do you.
Your sons thank you. So do their wives and families and so does your wife. Happy Thanksgiving.