SILVER FOXES:
Practicing the Art of Resolution
By Stewart L. Levine
The true function of our profession should be to gain an acceptable result in the shortest possible time with the least amount of stress and at the lowest possible cost to the client. To accomplish that is the true role of the advocate.
-Chief Justice Warren Burger
1986 address to the American Law Institute
For the past year, I have been researching the work of those I call Silver Foxes. They are trusted advisors, attorneys who practice the art of resolution. Their most distinguishing standard is taking care of others' resources as if they were their own. They focus on resolution, not process, as they quickly, efficiently and creatively carry out their mission of enabling clients to resume the business of their lives. They have been working this way for many years. They have very healthy practices.
Through observing them I have come to define resolution as the condition of the parties and their resources after a conflict is settled. After listening carefully to their stories, I believe our present difficulties as attorneys are rooted in losing touch with the leadership and inspiration of their noble traditions. While many lawyers struggle personally and professionally, for the Silver Foxes, business is booming.
The core competence of the Silver Foxes is the ability to lead parties to address the ultimate source of their conflicts: the breakdowns in their working relationships. These breakdowns impair parties' ability to coordinate with each other, and without coordination, productivity stops. Silver Foxes operate from the principle that their job is to lead parties to resume their coordination with more effectiveness and to return to productivity.
How to deal with conflict was not part of the core curriculum
in our early education, and it certainly was not part of what we learned in law school.
ARTICLE ABSTRACT
"Silver Foxes" are lawyers who understand the time-honored objective of lawyering: resolving conflict as quickly and costeffectively as possible, without concern for the billable hour. In doing so, they ensure their success financially by retaining satisfied clients and attracting their clients' referrals.
The Genesis of Our Current Crisis
Silver Foxes know the key to our current professional crisis is that most attorneys are oriented to their process, not to resolution of the conflict. Individuals and attorneys often choose to prepare for war first. That is part of our American "rugged individual," "Marlboro Man," "Lone Ranger," "conquer the west" culture. Parties-themselves or with the help of willing gladiators-posture, threaten, incite, delay and escalate from an adversarial position. They take delaying actions and often detach themselves from the conflict. Even though cases are "settled" (in common thinking, everyone compromises and loses) on the courthouse steps, the resources squandered and opportunities lost are an enormous, never-to-be-recovered waste of individual and collective human and material capital.
I believe the present situation exists because of fundamental changes that took place during the time my generation, the baby boomers, entered the practice of law. In the '60s and '70s, these changes took place in the legal profession:
The flowering of the law firm "culture of the billable hour," that placed attorneys in conflict with their clients;
The ballooning of the body of statutory and case law that required specialists who focused on the law, not the people;
The "legal lottery system" of a class of cases that makes it worthwhile to roll the dice;
The advent of large law firms with business management structures that needed the predictable revenue streams generated from billable hours for survival.
The treadmill on which we are trapped is very hard to escape, because:
Attorneys have a conflicting personal interest in perpetuating the dispute-as long
as the dispute continues, they continue to bill for their time.
The game most lawyers play is about
process, not resolution, and they ask clients to pay for process, not results. No business in the world does this. As a result of these practices, the legal profession is facing the crisis of clients not valuing what is offered.
Attorneys are unable to see how they participate in the loop, because they are inside a professional discourse that says what they are doing is right and appropriate. Most are literally blind to what someone outside the profession can observe.
Sadly, we have lost much of the esteemed tradition of the art of resolution that was practiced by the Silver Foxes. In this age of the billable hour, lawyers and required process often stimulate, escalate and prolong conflict. I recently saw a cartoon in which a well-heeled attorney was smilingly working the milking stool between the polarized, disintegrating, tattered and forlorn parties at each end of the cow.
In the past year I was called into two situations that were out of control. Legal fees were easily 10 times the monetary value of the matters, which should have been resolved early on. "Billable hours," failure to adequately assess risks and lack of due diligence caused the situation. Clients' emotional well-being was at stake because their lives were threatened by lawyer miscalculation and the failure to use a simplified procedure early on.
Lawyers-keepers of the law-have tasted of the golden apple of the billable hour. The feeding frenzy that ensued leaves us in a mountain of lawyer jokes. Consumers now fear going to lawyers, and a revolt has started. Many lawyers are dissatisfied and ashamed. The tradition many attorneys signed on for as law students is threadbare and tattered. Many lawyers are in denial about the loss of respect for our profession.
Coordinating Action
Humans do not thrive through individual action. We coordinate actions in order to produce much more than we can produce alone. We relate to others in business, family and personal situations. Differences are inevitable; it is essential to be able to deal with them in the context of our coordination. Continuing unresolved disagreement drains energy and stands as a barrier to progress.
Unfortunately, no one taught us how to deal with conflict. It was not part of the core curriculum in our early education, and it certainly was not part of what we learned in law school.
Silver Foxes know that conflict is not a
call for alarm; it is a call for resolution. Conflict is a sign that more communication for the sake of effective coordination is required. This takes place through inquiry in conversation. Effective communication is essential. Silver Foxes know that if all concerns can be exposed and addressed quickly, it will lead to more effective outcomes. Silver Foxes are experts at generating full disclosure-a primary foundation for resolution.
Escalating conflict is almost always the path that avoids dealing with parties' most vulnerable concerns. This happens for any one of.a number of reasons: fear, not knowing what the real issues are, hiding fault and placing blame elsewhere, to name a few. The Silver Fox discourse about differences and diversity contains two core messages: 1) Acrimony is usually a waste of energy, time, money, emotions and property-precious, limited resources, and 2) the only way conflict is truly resolved (parties returned to coordination) is to deal directly and thoroughly with all relevant issues.
New Possibilities
Silver Foxes claim that we have diluted our standards of professionalism. If you go to a surgeon for a sprained ankle and insist on treatment, you'll probably have some surgery. So it is with going to a lawyer for many kinds of problems. Nevertheless, often because of the need for business, attorneys will "do their dance."
Because of the enormous legal expenses that provide no added value in the client's mind, major business players are demanding that the legal profession turn from litigation toward ADR: alternative dispute resolution. ADR consists of a number of processes which are considered alternatives to traditional legal process and its complex procedures and rules of evidence. These rules produce delay, often obscure truth and prevent parties from telling the most vulnerable aspects of their story. These vulnerable aspects are almost always the places where resolution can be found.
In the last few years, major business clients have realized that many of the legal dollars they were spending were not necessary for resolution. A Fox I spoke with recently couldn't understand why lawyers would ever think their clients should willingly pay for extensive discovery of all aspects of a case, when business decisions with much greater financial consequences are usually made with much less information. The same Fox made the observation
that by doing 20 percent of what might be considered ordinary discovery he gets 80 percent of the information, which is much more than needed, in most cases. Clients certainly appreciate this style of practice.
The way we deal with conflict as a society runs on a continuum. On one side of the spectrum are cooperative, less formal methods, with or without a neutral third party. These methods include conversation (plain talk), negotiation, conciliation and mediation. In these cooperative methods, parties retain the responsibility for the resolution. Final outcomes are voluntary and, therefore, are much more likely to be honored. On the other end of the spectrum are more formal, adversary proceedings such as arbitration and trials. In these proceedings a third party or jury makes the decision (tells you what the resolution is). The genius of the Silver Foxes is that they are masters at keeping the resolution at the simple end of the continuum. Why "negotiate" when you can just talk?
Few disagree that we must find new, streamlined procedures that contribute to our collective productivity and optimize our scarce resources. Many say ADR is a misnomer-that litigation should be the last alternative, not the first. I agree, though there are situations where it's the preferable and sometimes only alternative.
Meanwhile, Silver Foxes keep on doing what they have always done. They resolve matters with frank discussion after grounded analysis and due diligence. For them, litigation was always the last resort. In the Japanese culture, a lawsuit is another way of saying counsel has failed. That's a principle Silver Foxes adhere to.
A very senior Fox candidly stated, "Law really has very little to do with resolving disputes." He meant that the parties closest to and most familiar with the matter are in the best position to determine the best resolution, which often is not based on "legal rights." When parties are satisfied, the resolution is effective. That's the essential condition of satisfaction for the parties.
A New Paradigm: Fostering Client Responsibility
I believe that in many situations we lawyers, if we want to regain our status as leaders and trusted advisors, must give back to our clients the authority and responsi- bility for resolving differences. Our current attitudes and standard practices encourage people to abdicate to professionals and hide behind "required procedures." The present
Few disagree that we
must find new, streamlined procedures that contribute to our collective productivity and optimize our scarce resources.
systems are designed to process "legal" cases. Disputes between people who are vulnerable, with genuine human and business breakdowns, are evaluated and sorted based on legal doctrine, then processed accordingly. Often, the deepest concerns are not addressed, let alone resolved, because they usually don't fit neatly into the legal theories that lawyers and courts use to evaluate situations that come before them.
I always encourage my clients to take personal responsibility. They can more readily go to the root of what is not working and is causing breakdown or ineffectiveness. When clients abdicate personal responsibility, it becomes much harder for me to identify the source of the conflict. This is where most lawyers get sidetracked into focusing on legal principles. This usually makes effective resolution impossible. The issues that require the client to be the most vulnerable will not get addressed because the focus has shifted to legal issues.
When you can keep the client focused on those vulnerable concerns, and talk about them thoroughly, then resolution will happen. And it will apply not just for the particular matter; it will also deliver some of the habits of more effective coordination-the pathway that had to be built for the resolution to happen.
Unfortunately, most of what lawyers read about in the arena of conflict resolution is process. Little is said about the overview; the value of conflict and how to use it to enhance the productivity of coordinated action.
A young, innovative Silver Fox in a large firm became enamored of alternative process. He custom-designed a unique procedure for an important case of an important client. His partners were concerned about looking weak and about the loss of billable hours. But the process worked. The case was resolved quickly and elegantly. The client is on board for life, and keeps sending more matters.
This is an example of the Golden Rule of Resolution in action: Treat client resources as if they were your own. They'll keep coming back.
The Makings of a Silver Fox
Silver Foxes speak to themselves about conflict in a way that is very different from the usual. I remember my initial introduction to "the adversary system" as a young attorney. What most impressed me was the manner in which solutions could be invented to accommodate the interests of both
sides. I realized that if I understood the concerns of the other side-what they needed for resolution-then accommodation and satisfaction for everyone was possible.
I was fascinated with the way the ablest judges were able to discern parties' essential concerns. They knew how to honor and respect the opposite positions presented, and how to find the vessel that would hold both positions. They were part of a tradition that could accommodate and find a balance for competing concerns. Black/white, right/wrong or win/lose was not the point of inquiry; effective resolution was.
As a second-year law student, my first legal job was as a clinical intern for a local legal services center. I had no legal experience. On my first day of work, I was given 20 cases for the semester. Three weeks later, I asked my supervisor for more cases. When he inquired about the 20 I had, I told him, "I resolved them." He asked how. I told him, "I spoke to my clients and the attorneys on the other side." He was very pleased with my results.
I spent the next 12 years learning how to be less effective at resolving matters and more effective at making money. Then I stopped practicing law. I have devoted the last 10 years to practicing and discovering the art of resolution and the critical role it plays in keeping society functioning.
It is essential to steward the mindset of resolution. Elder Silver Foxes tell me lawyers need to be leaders, committed to creating solutions that permit all concerns to be voiced and honored-at the beginning of the conflict, before resources are wasted. Looking for the quickest resolution from the outset is the key to having a full stable of satisfied clients.
Unfortunately, our "standard practices and procedures" and "learned attitude" often encourage secrecy and exclusion. But clients are letting us know that is simply unacceptable.
An esteemed Silver Fox told me his mentor shared with him, about 50 years ago, that "lawyers are the oil that keeps the machinery of society moving; we make it all work!" That's the kind of gossip lawyers want from the public!
Silver Foxes, Oral Tradition and Mentorship
How our society views conflict, dispute resolution and the legal profession is begin-
ning to change, with all the pain and fear that often accompany such moments in history. This is happening in the context of a
rapidly changing business and political global environment.
Clients are indignant. Thousands of attorneys who have been charging upwards of $300 per hour are worrying about their futures and looking for new formulas for their practices. What is happening? Any Silver Fox will tell them they have missed the keystone of lawyering: providing eff ective advocacy, which translates into valueadded stewardship of client transactions, and spending client resources according to the Golden Rule.
While a number of ADR processes are on the market, no one is talking about the venerable tradition of the finest lawyers. Only by honoring these values will we turn around the current public attitude toward our profession.
Silver Foxes spend clients' resources as if they were their own. The tradition has been practiced for years by attorneys of the most privileged clients who would not stand for anything less. This is not taught in law school. It is handed down through mentoring-an oral tradition available only to a fortunate few. The culture of Silver Foxes is opposite to the culture of the billable hour. Unfortunately, the tradition of mentorship has been obscured and supplanted.
Historically, the way into the legal prof ession was through work and study with a preceptor. This was the equivalent of apprenticeship. This system indoctrinated the new lawyer with much more than the letter of the law. It served to imprint indelibly the spirit of the law into the young attorney. Observing and assisting the already initiated was the manner in which the tradition of the Silver Fox was passed from one generation to the next.
Lawyers knew one another by name. Your word was your bond. Once damaged, a reputation was hard to reclaim among colleagues. The spirit of service was part of what was passed on. Before the billable hour, the focus was on taking care of people, listening to their concerns and efficiently advising what to do.
The body of law that had to be mastered was tiny, by today's standards. The job of the lawyer was more that of counselor and advisor . The meat of what it meant to be a lawyer was learned at the feet of the mentor. Young lawyers observed firsthand the bedside manner, the caring glance, the timely touch, the Dutch uncle and the paternal kindness. Seeing your lawyer was like going to confessional. Truth and honor were present, as was the art of advocacy. I learned
Resolution Is ...
RESOLUTION is an outcome, not a specific process.
RESOLUTION is the condition of the parties and their resources after a con flict, dispute, disagreement or breakdown is put to rest.
RESOLUTION returns parties to productivity and coordination. Without coordination, productivity is very limited. Coordination is based on relationship.
RESOLUTION brings parties to address their relationships and resume coordination
No matter what process is used, RESOLUTION requires:
■ Moving from conflict to a workable agreement-a dynamic context for action and cooperation;
■ Honoring the concerns of all parties;
■ Taking new actions that put the conflict and its impact to rest;
■ Commitment to ongoing relationships;
■ Getting beyond the emotional positions of the parties;
■ Establishing a new vision for the future that bypasses or diffuses blame, punishment and damages, and recognizes the parties' potential value to each other;
■ Recognizing new practices essential for the success of the operational relationships;
■ Willingness to learn, courage to change and compassion to forgive.
MASTERFUL RESOLUTION requires that
■ All parties assess they have won.
■ All parties assess their resources have been optimized by the process.
■ All parties acknowledge that conflict and breakdown are inevitable in life, and assess they are in a better condition to handle them in the future.
more about law practice in one week from my mentor than I learned in three years of law school.
The art of advocacy was not the art of adversary. Among lawyers, an attitude of civility existed. The lawyer was a community leader, and the civil attitude was a role model for society at large. You could civilly disagree and, through the art of advocacy, discover the resolution that respectfully accommodated everyone's concerns. The student had the opportunity to witness the tradition of the role of officer of the court, with its allegiance to the sacred function of the legal system. The integrity of the lawyer and of the legal system was more important than the "Rambo" style of winning at any cost.
The study of law was done by reading and engaging in lively debate with mentors. But the real learning centered around the nuance of the role of trusted advisor. The nuance of essential relationship skills that enabled lawyers to guide their clients across white water. When to honor confidence and when to meddle, when to listen and when to speak strongly, when to stay close and when to keep distant, when to talk common sense and when-as a last resort-to sue.
An Old New Paradigm
Silver Foxes are trusted advisors. Their advice is not found in law books; their foundation is that of fairness and honoring thy neighbor. It is important to bring these elders forward when lawyers are searching for strong footing on which to build a new foundation.
The American Bar Association recently hired a public relations specialist. PR in this situation is like closing the barn door after all the animals have escaped. The $170,000 salary would be better spent on a mentorship program that would improve professionalism. Then PR wouldn't be needed.
So many lawyers have stopped holding client service as sacred. We have become primarily concerned with billable hours and maintaining profitability. If we don't move fast, we will lose our noble tradition.
The Foxes will tell you a lawyer's mission is to honor and protect clients' scarce resources-not just property, but the psychological and emotional resources that make up the fabric of life. Professionalism is more than honoring the statutory standard. It must weigh the human cost when ministering to clients who have business problems; have had their houses destroyed by fire; have lost a child; have been divorced; have
buried a parent, child or spouse.
Silver Foxes embody the tradition of resolution. Silver Foxes have always viewed fighting and litigation as the last, leastfavored mode of conflict resolution. The\' carry principles and practices that are essen'tial for optimizing effectiveness and productivity, and minimizing emotional cost.
Because of the connotation of "effective shrewdness," everyone loves the model of the Silver Fox. Their principles and practices become more important as we increasingly and more rapidly "transact" with others in a shrinking world of technology and interdependence. ■
© Copyright 1995 Stewart L. Levine. All rights reserved worldwide.
Stewart Levine, 328 Gold Mine Drive, San Francisco, California 94131, practices the art of resolution and leads seminars. He is the author of a number of arti cles on law practice man agement that advocate resolution as the highest art of client service. He is cunently working on a book about how the most masterful practitioners-Silver Foxes-wield the art of resolution.
ResolutionWorks is a consulting and training organization dedicated to providing skills and ways of thinking needed to build strong organizational cultures in all types of working environments.
It is also a public resource for individuals and organizations who wish to create powerful, sustainable collaborations and partnerships. This website provides a variety of instructional methods in a wide variety of media formats. Become part of a growing and thriving community!
