First published in the Wisconsin Law Journal, June, 2007, Alternative Dispute Resolution Section
Think back to those law school days of the Socratic Method. Or perhaps a more recent, similar memory is oral argument.
The good news is, in this instance, you can be the one asking the questions.
Consider the following scenario:
One of your clients is embroiled in a bitter conflict with a business partner (or a family-business member, subcontractor, or customer). Your client is angry and calls you, as a deft legal advocate and litigator, to “win” the dispute.
Your objective is to represent your client’s best interests and, understandably, to quickly assume the role of legal advocate. However, an important option is to synthesize your legal advocate role with an executive coaching inquiry process — simply put, your questioning — to enhance client value.
Why is this important?
A fundamental aspect of human nature is the tendency to be our own worst enemy when emotions take over. As we’ve all seen too often, in the heat of a dispute, all parties can unwittingly succumb to self-defeating ways of thinking and acting.
The outcome is that disputes usually have two dimensions. One, the substance, is the focus of most disputes and typically described in terms such as contract violations that attorneys are well suited to address. However, problems involving relationships are often the underlying cause of disputes, reflected by perceived mistrust, lack of respect, and breakdowns in dialogue causing fear and anger.
It’s deceptively easy to buy into your client’s emotional reactions and illusions of what is right and wrong, thinking that you’ve identified your client’s best interests and then pursue a legal strategy. Yet, accurately assessing “best interests” may be obscured even to your client, buried under layers of rationalization and emotionally reactive behaviors engaged in by both parties.
Give Executive Coaching Inquiry a Try
An important aspect of executive coaching is to use inquiry skills to help people strengthen self-awareness about their emotions, thinking, and behaviors. The goal is to help others find greater meaning and achieve improved outcomes in their work, relationships, and personal lives. You can use executive coaching inquiry skills to help your clients take responsibility for their feelings and behaviors, consider other meaningful possibilities, strengthen important relationships and rebuild trust.
So, as an attorney, reviewing and creatively applying the Socratic Method of inquiry used in law school can help you move beyond common legal questions to help clients get to the root causes of relationship issues. For example, in contract law, a basic legal question might be: Who breached what duty? Using broader coaching questions can help clients improve their self-awareness; uncover erroneous assumptions; provide insight into the fears of both sides; and, engage the parties to creatively consider options beyond legal solutions
A few examples of meaningful questions you could ask might include:
1. What important outcomes would be achieved if the parties could rebuild trust?
2. Do you think the other person is defensive because of fears about your intentions?
3. Could your statements have been perceived as disrespectful?
4. What are the positive results of the relationship which would be jeopardized if the dispute continues for a long time?
5. Is the conflict caused by different talents and interests that are actually complementary strengths which offer greater choice and benefits for customers?
A Risky Approach:
Be prepared for, “Whose side are you on?”
Your clients may be emotionally vested in their arguments, fears, and anger, wanting only to achieve specific legal outcomes. But that may be the reason to use a coaching inquiry process: To help clients reconsider, identify and achieve better outcomes than litigation might afford.
The process can reinforce your ability to pragmatically reason with clients to help them understand that what they desire as a legal solution can be expensive, time consuming, and risky to pursue. You can educate clients that even winning a legal claim may not result in a satisfactory solution.
Depending on the situation, winning could simply exacerbate a rift in important relationships, develop morale and turnover issues among employees, or create adverse publicity for the business. Just the litigation discovery process often runs the risk of public disclosure of sensitive information that the business may prefer to retain as confidential.
Particularly if no Alternative Dispute Resolution (“ADR”) provisions are included in an existing contractual arrangement, and if the parties are unfamiliar with mediation, you may be able to add great value for your clients by enhancing your legal advocate role using executive coaching type questions.
You might also consider arranging for an experienced mediator to work with the parties to mutually explore ways to strengthen relationships and rebuild trust, as well as to help achieve long-term solutions to challenging problems in the best interests of all parties.
As private mediation becomes an accepted method of resolving the issues presented in a divorce, increasing numbers of clients are asking lawyers to provide a new kind of service, as...By Michael Becker, Esq.