Biglaw, In-House Counsel, Partner Issues

Inside Straight: Competing, Collaborating, And Compromising

Mark Herrmann is happy to share his conflict resolution style with the world, but what's your method of handling conflict in the practice of law?

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The “talent management” folks are so different from lawyers.

Lawyers (at big firms, anyway) ask junior lawyers to do things and, ten years later, look to see who survived.

Talent management people couldn’t be different. They assess individuals and groups to try to find ways to improve performance. “O brave new world that has such people in’t!”

But when the talent management folks turn their sights on me, I realize that I have a split personality.

I (and everyone on my compliance team) recently took the Thomas-Kilman Conflict Mode Instrument. This puppy repeatedly asks which of two ways you would choose to resolve a conflict. After you make 30 of those choices, a computer spits out the “conflict-handling mode” that you prefer. The five conflict-handling modes are “competing,” “collaborating,” “compromising,” “avoiding,” and “accommodating.”

This test revealed my underlying split personality before I even learned the results. As to virtually every one of the 30 choices I was asked to make, my answer depends on the circumstances. When representing a party in litigation, I’m often a “compromiser”: He demands 100; I offer 10. He drops to 90; I go to 20. He wants six months to trial; I offer 24. On most subjects, litigants have equal power, and no one wants to be blamed for bothering the judge, so we compromise. According to Thomas-Kilman, I’m a “compromiser.”

But that’s just one of my many personalities. Suppose I’m not representing a party in litigation, but rather “negotiating” with one of my own clients. Goodbye “compromiser,” and hello….

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(Man, was that a great segue into the “jump,” or what? I’m mighty proud of myself.)

Where was I? Oh, yeah.

As a lawyer at a firm, when a client asked me to do the impossible, I was an “accommodator,” pure and simple. A client might ask me, for example, to prepare a rolling 12-month budget for a litigation matter, broken down by the amount of time each individual lawyer on the team would spend working on each ABA task code. An appropriate (and sane) reaction might well have been: “You must be out of your mind!!!” But you never heard that from me. If you’re the client, then I’m an “accommodator”: “Why, of course. Can I get you the budget on Thursday, or do you prefer it tomorrow?”

You’d like the 100-page investigative report a week from Friday? My pleasure. You changed your mind and need it this Friday? Of course. Your schedule has changed and you need it tomorrow? That might bring out the lingering “compromiser” in me: Can we have until the close of business tomorrow?

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That was how I treated clients. But that was just the second of my many personalities. This wasn’t at all how I handled conflicts within my law firm. If I disagreed with one of my partners (whose opinion I respected) about how we should approach some issue, then I became the ultimate “collaborator.” I’d throw out my ideas; she’d throw out hers; we’d hammer away at the issue until we reached the best possible solution. Collaboration city!

Now that I’m in-house, I continue to resolve conflicts in different ways. Suppose a business person wants to do something that poses a legal risk. We collaborate; we put our heads together and try to figure out how to achieve the business goal in a way that minimizes (or eliminates) the risk.

Suppose the same business person wants to do something that’s brazenly illegal, and there’s no lawful way to achieve the goal? All of a sudden, I’m a “competitor”; I assert my authority and insist that the other person obey: “No!”

If you tell the talent management people that you have a split professional personality and don’t know how to answer the questions on the Thomas-Kilman Conflict Mode Instrument, the talent folks will tell you that you’re being silly: “Just pick the choice that usually applies.” But there’s no “usual” for those of us whose professions force us to play very different roles at different times.

After you take the Thomas-Kilman test, the talent management folks will tell you that they often prefer collaboration as the best way to resolve conflicts, but that different conflict-management styles can be useful in different situations. That strikes me as both true and probably a good reflection of reality.

I’m pleased to report that my compliance team as a whole leans toward the three c’s of resolving conflict — collaborating, competing, and compromising — which seems about right for a compliance department. We should start by collaborating with the businesses, to try to reach the best possible result. We should compromise (within bounds) where necessary, so we don’t gratuitously become “the department that always says ‘no.'” But when push comes to shove — when there’s no lawful way to achieve a business goal — it’s time to be imperious (or “competitive,” as the talent managers would say). It is, after all, ultimately the compliance department’s duty to keep the company on the straight and narrow.

Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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