You don’t have to look hard to find conflict in the world. It’s everywhere. Add to this the conflict that is inherent to the practice of law, and it’s no wonder that lawyers are stressed.
Spend a day in a courthouse, and you are likely to see litigants arguing, opposing counsel raising their voices at each other, and clients expressing frustration with their attorneys.
As lawyers, we inevitably live and breathe these types of conflicts. I do have good news for you, though. Not all conflict is bad, and it’s possible to manage conflict in a way that allows us to be more effective.
Let’s get started and figure out how.
High conflict vs. healthy conflict
In the book “High Conflict: Why We Get Trapped and How We Get Out,” Amanda Ripley, a journalist who has written for the Atlantic, the Washington Post, and Politico, identifies two types of conflict: high conflict and healthy conflict.
Ripley’s textbook definitions of both, which I also use as the foundation for this blog, are:
- High conflict, which is self-perpetuating, all-consuming, and can lead to personal and professional stagnation. In high conflict, it is typically us vs. them, and almost everyone ends up worse off.
- In healthy conflict, the friction can be serious and intense, but it does not collapse into dehumanization. Healthy conflict leads to curiosity, questions, and movement toward something useful, even if there is some yelling.
“Healthy conflict leads somewhere; it feels more interesting to get to the other side than to stay in it,” Ripley writes. “In high conflict, the conflict is the destination. There’s nowhere else to go.”
Bill Eddy, lawyer, licensed clinical social worker, therapist, and Director of Innovation at the High Conflict Institute, says that high-conflict behavior is becoming more prevalent in today’s world.
“We are all faced with an increasing number of people with a pattern of high conflict behavior that includes a preoccupation with blaming others, a lot of all-or-nothing thinking, unmanaged emotions, and extreme behaviors,” Eddy writes.
In his work and research, Eddy finds that high-conflict individuals “lack the emotional self-control, the empathy, and the remorse that restrain the rest of us in order to get along.” A good identifier of a high-conflict person, according to Eddy, is someone who only talks about someone else’s bad behaviors during a conflict, instead of acknowledging the role they may have played.
How our bodies experience high conflict
In one of my first cases as a new legal aid attorney, I was working on a divorce case with an opposing counsel who had been practicing for more than 30 years. Our clients were angry and disappointed that their marriage was ending. They fought over everything.
When progress was made on an issue, one of the clients would ask for more. For example, when a fair offer was made on the marital home, the other side changed its position and claimed it was worth more than the original agreement.
Being around this type of high conflict regularly, as lawyers are, takes a toll on our nervous systems and overall health.
The amygdala in the brain is triggered when it detects danger, such as high conflict, igniting the body’s fight-or-flight response by pumping stress hormones. Physically, this can cause our hearts to race, our bodies to feel hot, and our muscles to tense up.
Conflict can also cause us to operate based on instinct rather than using the “smart” part of our brains, according to a blog on Gottman.com. Responding based on instinct would be a reasonable response if you were in danger, but as an attorney, getting caught in high conflict can make us ineffective advocates.
I fell into this type of reaction in a high-conflict situation in the courthouse prior to the divorce case’s hearing.
When I would not relent on an issue that was important to my client, opposing counsel raised their voice, claimed that I didn’t understand how things worked, and accused all legal aid attorneys of dragging out cases. I remember my heart racing and feeling anxious before I snapped back, reminding opposing counsel our clients were getting a divorce and not us. Neither of our responses helped move the case closer to resolution that day.
My divorce case is not unique. Lawyers face high-conflict situations regularly, when business partners disagree, mergers fail, or estate cases cause family turmoil. A recurring issue is that it can be hard to determine the root of the disagreement.
In “High Conflict,” Ripley emphasizes the importance of determining the underlying cause of the disagreement. For example, figuring out why a crockpot was such a big deal in a divorce case.
In this case, to one person, the crockpot represented the couple’s wedding registry and the comfort of home-cooked family meals.
To the other person, who was unaware of this deeper meaning, wanting the crockpot was a way to make his former partner feel some of the pain he was experiencing regarding the divorce. He just wanted the crockpot because his partner did too.
Uncovering what the conflict is really about is key to moving out of high conflict and toward healthier, more constructive conflict.
Finding a path to healthier conflict
As lawyers, we are uniquely situated to diffuse a high-conflict situation rather than to throw gasoline on it.
We have been trained to be skeptical and to ask questions that unearth the reasons and evidence behind an issue. By listening to our clients and making sure they feel heard by all parties (e.g., lawyers, the other side, the court), new possibilities can surface in a case.
Rather than leaning into conflict and incivility, which, based on the Commission on Professionalism’s research, makes it more difficult to resolve matters, harms public confidence in the judicial system, leads to increased litigation costs for clients, and makes the practice of law less satisfying, lawyers should use the way we were trained as a tool to keep conflict healthy.
Some of the best ways to stay in the healthy conflict zone are active listening and maintaining civility, even when others aren’t as civil.
Active listening
Ripley writes in “High Conflict” that being a good listener makes you and those around you more curious, which can help keep us from digging our heels into high conflict.
Asking questions and responding is easy, but the listening part is harder, and listening skills aren’t regularly taught in law school or CLEs.
Norman W. Spaulding, a Stanford Law Professor and scholar in professional responsibility, stresses these key steps for active listening. I apply them to legal practice below.
- Pay attention. While this may seem obvious, we all know when someone isn’t really listening. In conversations with your clients, colleagues, or opposing counsel, stay present and maintain attentive body language.
- Suspend judgment. This may be the hardest part of active listening. To be the best advocate for your client, try to enter what may be high-conflict conversations with the goal of learning something new. Even if you think you have it all figured out, there is always more to uncover.
- Pause and reflect. Take a moment to reflect on what the speaker said and their feelings. Opposing counsel may be at the end of their rope on a case because of their client’s demands. You can share that you understand and can relate to their frustration.
- Ask clarifying questions. To better understand what the speaker is saying, ask genuine questions to understand their perspective.
- Summarize. Summarize the conversation for the speaker from your point of view, to ensure you understood what they were saying. This is often referred to as looping. As Spaulding writes, “Try to faithfully describe the essence of what the other person has been trying to say and to summarize it in a way that they would say, ‘That’s exactly what I meant.’” You may need to do this several times to get it right, so remain patient and interested.
Active listening can help you understand why something like a crockpot is important and also areas where the parties agree.
When entering conversations from a place of active listening, Ripley recommends asking yourself some questions like, “What is the question no one is asking?” “What do I want to understand about the other side?” and “What do I want the other side to understand about me?”
De-escalating incivility
Let’s be real, civility isn’t a top priority for some lawyers. These lawyers may fall into what Ripley calls “conflict entrepreneurs,” or people who exploit high conflict for their own gain.
Because I work at the Illinois Supreme Court Commission on Professionalism, attorneys often share stories of horrible situations they have encountered with other lawyers, like when an opposing counsel slashed another attorney’s car tires in the parking lot after a hearing.
So, how can you maintain civility when others go in the opposite direction? Start by practicing strategies to de-escalate the situation.
Let’s say that you receive an email from opposing counsel that includes derogatory remarks about you and your client. Your instinct may be to respond defensively but, as we have covered, responding instinctively can often escalate high conflict.
Instead of letting your amygdala hijack your brain, pause before responding. Write the email you really want to write to let off steam, but don’t send it. Remember that emails can easily become exhibits in pleadings. When you respond, stick to the facts and remove the emotion. Don’t get caught in a lengthy back-and-forth exchange; rather, use clear statements such as, “I do not agree with your position.”
High conflict is also present in depositions, when sarcastic comments, name-calling, and improper objections can rear their ugly heads, causing things to go off the rails. In preparation for a deposition, make sure to have a court reporter and your objections at the ready, and try to conduct the deposition when the judge is available to weigh in on an objection.
If the deposition becomes destructive to the case, end it. Continuing to push through when high conflict cannot be de-escalated is fruitless.
Healthy conflict is better, case closed
Conflict will always be part of a lawyer’s work, but staying in high conflict isn’t your only option. Healthy conflict is the right way to practice and will bring about better results for you and your clients.
Ripley starts her book with a quote from Sufi poet Jalal al-Din Muhammad Rumi, and I will end there: “Out beyond ideas of wrongdoing and right doing, there is a field. I’ll meet you there.”
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“Communicating During Conflict: Understanding Your Role” CLE