JAMS ADR Blog by Chris Poole
We are finally starting to see signs of economic recovery, with businesses reopening and emerging from their forced hibernation. We are witnessing the evolution of the workplace and work itself. So let’s reflect on our experiences, the mistakes we made, the lessons we learned and the conflicts we resolved. At the beginning of the pandemic, people felt shocked, confused and helpless.
I was interviewed in “Disruptions, Disputes and Dialogue,” a Q&A that appeared in the May-June, 2020 issue of the Corporate Counsel Business Journal. In it, I mentioned that the first period of COVID-19-related lockdowns was an indication of what would follow and that corporate counsel should be prepared to manage the conflicts that would emerge from the pandemic. Little did I know how prescient this advice would be or how large a shadow COVID-19 would cast over the global economy. While that article was relevant in 2020, I believe it is essential today, so I would like to “upcycle” some of the concepts I presented, with a 2021 (and beyond) spin!
Avoiding commercial difficulty and conflict provides value, as it helps to maintain relationships and eliminate distractions. While this is understood, dispute avoidance methods are rarely adopted because implementing them can be a complex endeavor. Devising a process to anticipate issues and hopefully avoid them makes good business sense; however, a lack of organizational commitment may doom its implementation. While many individuals are continuing to experience uncertainty, they may be willing to embrace new systems and methods of engagement in order to create balance and focus. We want to believe that at least some benefit will result from so much loss. This presumes, of course, that individuals will respond as they did prior to March 2020, but they won’t because they can’t. Why? Because each of us will respond to the same experience in a very different way.
Therefore, as organizations consider the future of work and the work environment, many are looking for ways to empower employees to identify the benefit of flexible working arrangements and how they can generate value for both employee and employer. They may also be seeking opportunities to reengage with their suppliers and stakeholders in new and innovative ways. This demands that individuals know how to listen to others and provide everyone an equal opportunity to be heard. Effective communication is essential in any dispute management process, especially when attempting to de-escalate conflicts. However, the ability to engage in a difficult conversation may now more difficult than it was a year ago. This due to the loss of social capital, Zoom fatigue, dwindling resilience and frustration, among other things. Recognizing these communication challenges provides an opportunity to change the narrative. This can be achieved by identifying shared interests, acknowledging shared challenges and collaborating on how to manage the uncertainty.
Dispute management and resolution
The pandemic has taught us how to be creative while considering the needs of the client/other party. We have learned to adapt, and this skill should also be applied when considering the mechanisms for managing and resolving disputes. Ask yourself this question: If I were to design a process to manage this dispute, what are its essential features, and what would be an acceptable result? This approach can be applied universally. Arbitration, when it was introduced, like mediation, was meant to be a flexible process. In the past year, elements of each process have been seen as necessary components for resolving some disputes. There are also other options that can be adapted to fit the needs of the dispute and the requirements of the parties, so a one-size-fits-all approach is no longer necessary.
What is the “new normal”?
In the Q&A, I was asked what advice I would give when considering the “new normal.” This was a year ago, so it’s quite remarkable that we are still asking the same question. I suggested that individuals consider what life might look like after the pandemic, yet I would hesitate to use “normal” to describe it, because it won’t be; it can’t be.
One of the biggest challenges during the past year has been dealing with changes to our daily routines, which may have been accompanied by the removal of personal choice and certainty. We as humans crave certainty, consistency and comfort. I believe that we look for patterns, remember things through forming associations and are comforted by consistency. The past year has been exhausting for many, but it has also been a year marked by a change of approach and thinking. For example, the alternative dispute resolution community has for years promoted virtual hearings and the use of technology, but not until we could no longer conduct in-person hearings did we fully turn to them. However, there is a growing concern that because there was no other choice and because of the relatively short period of time that virtual hearings have been used, this method may not have a lasting impact on some portions of the profession. Only time will tell.
Flexible working arrangements can achieve results, and they’re increasingly gaining in popularity. For example, prior to the COVID-19 pandemic, only 20% of the U.S. workforce worked from home (according to Pew Research Center) and now 71% of those workers are doing their job from home. Obstacles ranging from cultural to technological may have prevented remote work in the past and there may have even been a perceived stigma associated with remote employees. This is now no longer the case. Working outside of a shared office space can succeed; however, it requires planning, support and consistency. The future of work will look nothing like it has in the past.
All disputes have something in common: individuals in conflict who need assistance to find their way forward. However, how we manage conflict now is not the same as it was in March 2020. Therefore, as we start to restore in-person team connection, take time to get reacquainted with your colleagues. Yes, you might have been speaking to these individuals every day for the past year, but what is the substance of these conversations? Have they become more process oriented? Is there great physical distance between you and your colleagues? Do they know how the pandemic has affected you, and have they shared their stories? The answers to these questions will be revealed gradually over time as people become more comfortable, spontaneous conversations resume and previous routines are no longer on pause. It is important that everyone has an opportunity to share.
The pandemic has given us all a shared experience; however, its long-term impact cannot yet be determined. Consider this when managing your next conflict: Are you responding based on past patterns of behavior (habit) or from a place of understanding? Once established a conversation can begin and ideas can be shared, because when we collaborate, we can find possibilities that would be impossible to discover alone.