Mediation and the Black Belt Lawyer

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The symbolism of the term “black belt’’ may lead us in the first place to its meaning in the martial arts field, especially when you had your childhood influenced by the lessons from Mr. Miyagi and Daniel San’s hard path in Karate Kid.  Comparatively, but differently from the Karate world, our corporate environment also has “black belts” who rely on knowledge, discipline and wisdom. However, instead of using these skills on the mat, apply them to ensure quality and improvements to several types of operational processes: the Lean 6 sigma black belts.

Initially designed to avoid and minimize defects in manufacturing plants, the methodology today is applied to different industries and business segments, always keeping the focus on quality and client satisfaction. To be a black belt means to be a professional capable of working in a multidisciplinary team, using predefined techniques to improve processes. Mainly, a black belt should have characteristics of leadership such as initiative, enthusiasm, communication, motivation, analytical thinking and high technical skills in his/her specific field (WERKEMA, 2010 p. 31).

More recently, the typical 6 sigma toolbox to enhance business performance reached the in house legal departments with the purpose to integrate them to the main business strategies and to help lawyers to become businesspeople. As Jean Claude Najar (2014) explains in his interesting approach about the Dispute Management 2.0, for the CEO, it does not matter if you are an engineer or a lawyer, because, after all, the objective would be the same and concerns the overall view of the company’s policies and objectives.

As such, corporate lawyer and the in-house legal departments should no longer be viewed as an outside part of the corporation’s core business activities as they traditionally have been. Nowadays, lawyers are required to evaluate risks and to contribute to different types of processes and, if they want to achieve better results within the decision-making process, they must start speaking the business language as well !

Moreover, this approach and mentality can also help to diminish the barriers of different legal cultures that represent a big challenge for multinational companies dealing with laws and external counsels in different countries. To evidence these need, in February 2014, the international law firm Hogan Lovells announced the results of a survey (Hogan Lovells, 2014) they conducted among 146 senior lawyers and executives from the world’s largest companies in 18 industries to assess how cross border disputes have affected the legal landscape.

Respondents reported that one of their biggest challenges was intensified Corporate Board scrutiny of cross-border disputes. The summary says: “Since the market troubles of the early 2000s and the financial crisis of 2008, Boards have been forced, through a combination of regulation and pressure from shareholders and other stakeholders, to be more accountable for the actions of their companies. This has meant greater collaboration between the Board and their in-house and external lawyers at the highest level. General Counsel are still working through best practices in managing their expectations, and globalization continues to bring new and different challenges in this arena.”

“Forty-five per cent of respondents said their Boards are increasing internal scrutiny of cross-border disputes. Their main concerns are financial, but involve both the cost of handling the dispute and broader exposure stemming from it, including reputational risk. At their worst, these disputes may threaten ongoing business. Boards are also concerned about the uncertainty and the drain on internal resources. Internal teams are under increasing pressure to analyze cases, involve the appropriate teams within the business, develop and adjust a strategy, and inform the relevant constituents throughout the project. Those that then seek the input and preparation from external counsel then risk raising budgetary concerns“

After a while, it has become more evident that the “language” of lawyers, engineers and managers in general should not be too far apart from one another. A clear example of that is, although apparently complicated to legal professionals (which normally are neither gifted nor trained in sophisticated math skills, at least not in a Latin legal culture), the ability to apply Ishikawa diagrams, pareto, 5 whys and several other skills can surely complement their ability to provide better results. Understanding the importance, learning and applying complementary instruments, tools and techniques have become an essential part of the game of producing better results.

The use of Lean 6 sigma in some companies (such as GE, DuPont and GlaxoSmithKline) was significant for the outbreak of a new era on the dispute management systems.  Improvements on internal processes, combined to a more active and integrated legal department, played a special role on allowing ADR and mediation to play an increasingly important role on the development and implementation of corporate strategies. 

The DMAIC steps is one of the examples of the possible application of Lean 6 sigma to situations outside the engineering world:

Define

Measure

Analyze

Improve

Control

When defining, the goal is to identify the right questions to be asked, instead of just reproducing the old-style of doing things that consider law as the unique source of answers. It allows assumptions tests and search for guidance in factual detail before reaching the measure phase.  At this point, the numbers, from a sketch based in subjective impressions, should turn into a high-resolution image of the reality (hopefully with many pixels).

Entering the next step, the analyses suppose an understanding of the collected data: it is when possible solutions start to appear. Once determined solutions and goals, they are put into practice in the improve phase, which is followed by the last phase that guarantee the control and continuity including satisfaction researches, feedbacks and other gears.

Of course, although these methodologies have a better impact in repetitive procedures, they are also very helpful in non-repetitive settings by facilitating cultural changes, harmonizing patterns and unifying knowledge.  In effect, a common feature in these projects imply the prestige of consensual methods and the use of mediation and other ADR tools for early case evaluation and also when dispute is quickly approaching.

The use of mediation is essential for this new black belt lawyer and the next years will definitely prove it. As multi-step clauses are very often present in contracts, the new interfaces of mediation and negotiation with other dispute resolution practices such as arbitration, expert witness and litigation will ever more frequently become the birthplace of solid solutions. 

Another important trend being developed in project management of such nature is the interaction and use of mediation in commercial and legal issues involving new technologies. Electronic case management and online dispute resolution are interesting concepts for present and future. The development and relevance of these two elements were listed amongst as important new indicators on the World Bank group report for Comparing Business Regulations for domestic firms in 189 Economies: next year it will consider whether voluntary mediation and electronic case management are available for resolving commercial contract disputes (World Bank Group, 2014 p. 30).

Overall, the central role of mediation in the concept of dispute management stand with business principles of good governance as transparency, consensus orientation, strategic vision, effectiveness and efficiency. In addition, the good use of ADR is also relevant to conform to other trending standards for companies as resilience and compliance.

If the law should be the same for all, the same idea does not apply to dispute management systems: business and companies are never the same. As an illustration, it is not rare to witness difficulties between parent companies and their subsidiaries, not mention other complex interactions. Being a black belt lawyer does not mean having all the answers and solutions from the beginning, but to posses the knowledge of tools, techniques to find them along the way, in the most efficient and cost effective manner. Saving time, money and protecting important relationships will also come as a result of a well developed process.

In this sense, no one doubts that the issues concerned in a mining company in Brazil are not the same as those in a pharmaceutical one in France.  It is clear that, instead of standardized solutions, a tailor-made approach becomes an essential characteristic of successful projects  in any field. The focus on specific interests, issues and fears of the stakeholders involved are not something new for Dispute System Designers, as demonstrated in the Brazilian example of claim resolution facility created to resolve potential disputes emerged from an Air Crash (FALECK, 2009 p. 32).

The process of creation and implementation of a more efficient dispute management system consider all the inputs and outputs of the chain, including, among others, public sector, customers, suppliers and shareholders. All of those parties have a different impact in different business fields and differ from company to company. As for black belt engineers specialized in business performance management, our black belt lawyer will be prepared to work in any sector, since the methodologies – as the DMAIC and other 6 sigma tools previously mentioned –  can be directly applied (or adapted to fit)  different organizations, regardless of the industry or sector.

Nowadays, is ever more the coordination with other market requirements like innovation, risk anticipation and sustainability, as there are already pools of investment linked to the sustainable wise dispute resolution system adopted by the company, which creates value and boost profits. At that juncture, the modern legal department does not represent cost and reaction anymore, but income and anticipation. 

Financial investors, in addition to looking into their traditional investment tools (ratios, financial analysis), have now also incorporated social elements into their decision making process, creating sustainability ratios in order to measure and evaluate other dimensions which, until then, had been almost totally ignored. Overall, those investors realized now that long-term sustainability can directly affect the company’s ability to operate in a socially responsible manner.

In a global and interconnected world, this anticipation and control of risks might be a key for survivor and continuity. As general company strategies are usually designed from top to bottom, investment in performance improvement programs at legal departments have become an important element of the overall company strategy. The black belt leadership could also fit perfectly in the notion of “Conflict Leadership” promoted by Michael Leathes, which emphasizes the need of a problem solver lawyer and a more effective control by the legal departments, remembering that negotiation and mediation are great tools for controlling results and avoiding risks.

Large and small companies, regardless of their business activity or industry segment, must bring into their corporate and operational strategies a new range of elements (social, economical and environmental) in order to not only effectively satisfy all stakeholders, but also to remain sustainable and competitive in the long run.

For mediation – and mediators – it is probably the moment to do what they always encourage the parties (clients) to do:  to look the big picture! Even if mediation and consensual means are meant to be the focal point of the dispute management, mediation professionals have to be prepared to recur and deal with other techniques, before, during and after the facilitation process.

After all, even if mediation does not produce a settlement, it becomes a route leading to other processes. As Frank E. A. Sander and Lukasz Rozdeiczer (2005 p. 398) highlight “Mediation is almost always a superior starting process. Even if mediation does not produce a settlement, it becomes a route leading to other processes”. Besides being very powerful to resolve the dispute, even when it does not end with a settlement, it has the power to produce other important effects such as the preparation of the dispute, improvement of communication, clarification of interests and lowering settlement barriers.

Finally, when driving in French routes you often see signposts with the words ‘’toutes directions’’ that means ‘’all destinations’’. This indication might not take you directly to the place you want to go, but certainly assures you are not moving away too far from it or, worst, going to the opposite way. The ‘’toutes directions’’ signpost usually leads you to the main route and always represent the way you go if you do not know exactly what to do. In the dispute resolution route, Mediation could be interpreted as a ‘’toutes directions’’ and the lawyer the black belt conducting the process.  

Lawyers must face difficult dilemmas and innumerous surprises on the use of 6 sigma and participating on improvement process projects. However, it is unquestionable that interest-based methods and notably mediation will be part of the mission success, which is client satisfaction.

Endnotes

Conflict leadership. LEATHES, Michael. Available at: https://imimediation.org/conflict-leadership

FALECK, Diego. 2009. Introdução ao Design de Sistemas de Disputas: Câmara de Indenização 3054. Revista Brasileira de Arbitragem. 2009, Vol. 23.

Hogan Lovells. 2014. Global Currents: Trends in complex cross-border disputes. 2014. Available at: http://www.hoganlovells.com/custom/Global%20Currents_Trends_in_Complex_Cross-Border_Disputes.pdf.

NAJAR, Jean Claude. 2014. Corporate Counsel in the Era of Dispute Management 2.0. Business Law International. no. 3, 2014, Vol. vol. 15, p. 237.

SANDER, Frank E. A. and ROZDEICZER, Lukasz. 2005. Selecting and Appropriate Dispute Resolution Procedure: Detailed Analysis and Simplified Solution. [book auth.] Michael L. MOFFIT and Robert C. BORDONE. The handbook of dispute Resolution. San Francisco : Jossey-Bass, 2005, pp. 386-406.

WERKEMA, Cristina. 2010. Criando a cultura Seis Sigma. Belo Horizonte : Werkema, 2010.

World Bank Group. 2014. Doing Business 2015. Going Beyond Efficiency. 2014. Available at: http://www.doingbusiness.org/~/media/GIAWB/Doing%20Business/Documents/Annual-Reports/English/DB15-Full-Report.pdf