Conflict is unavoidable. If you’re not dealing with some conflict today, it’s coming. But conflict should not be feared; in fact, sometimes it results in innovation or strengthens relationships.

Unresolved conflict, however, usually leads to a formal dispute that can be time-consuming, expensive and distracting. Therefore, it makes perfect sense to take reasonable or even aggressive steps to limit conflict.

But the realistic expectation should never be to bypass it. All that said, while the timing and substance of conflict is often unexpected, how we resolve conflict is always within our control. Unfortunately, and simply put, the process of conflict resolution has gone completely off the rails.

Two trends within conflict resolution are concerning. First, the culture of conflict seems to have shifted. We are seeing not only a general lack of civility being normalized but also a heightened intellectual ego when we disagree about anything—I am right, you are wrong, and there is nothing in between. This type of divisive conflict has become acceptable, and it is also often rewarded.

In any forum, whether legal, political or societal, if a conflict becomes hostile and sensational, we appear more attracted to it. Society is obsessed with following antagonistic disputes and immature, often abhorrent behavior within them. On occasion, we are even witness to “fans” cheering for a favorite litigant outside a courtroom. In the words of former Roman emperor Marcus Aurelius: “Are you not entertained?”

Second, there is a decline in meaningful dispute resolution efforts outside traditional, formal proceedings. Good-faith discussions, with or without counsel, and the use of mediation are now often viewed as either a quick, contractual requirement or an inconvenient precursor to the real fight ahead. More parties jump right into a formal dispute with full force and aggression; celebrate every Pyrrhic victory along the way, often publicly through press releases and social media; and appear willing to fight for months or years to the bitter end.

Parties coming together willingly, with a genuine interest in civilized advocacy and a mutual commitment to amicable resolution appears to be the exception, not the rule. Today, we are more focused on winning, rather than resolving. In short, compromise has become a sign of weakness.

For the client, the result of these trends is the loss of time, money and focus. In the wake of bitter, unresolved disputes business partnerships disintegrate, leaving entire industries less congenial and uninterested in working together for a greater good. Internally, employee-employer relationships become increasingly accusatory and lacking in trust. Organizations and people become distracted and lose sight of their mission and purpose.

And relationships don’t just fracture, they break, unable to heal as they live on forever through a trail of texts, direct messages and posts. For lawyers, the result of these trends is no better, advancing what some see as an increasingly unfavorable reputation in the business community and the view that lawyers are not problem solvers but rather hired combatants.

It’s time to take action and shift these negative trends. But before we do that, we must start by being honest about how we got here. This didn’t happen to us. The legal community is at the center of this problem. It’s not a client problem. We are willing participants in both the actions and inactions that created and perpetuate these trends. So what now?

Whether you are in-house or external counsel, everyone in the legal community can and should play a role in ensuring that amicable, efficient and pragmatic dispute resolution is the goal.

The following are just a few steps we can all take to get to a better place:

Root in civility

One would think this is noncontroversial. And I suspect that most will claim that they are in the civilized camp. Yet here we are. We sometimes utilize the childhood argument of “I didn’t start it” to defend our occasional incivility. But we are no better when we punch back, and then it becomes contagious. Being rooted in civility means knowing the difference between reacting and responding. We can choose to avoid reactions and, instead, always deploy thoughtful, relevant responses.

Control your client

Yes, it’s a thing. In-house and external counsel have the ability and responsibility to set the tone for everyone involved in a disputes process. Be purposeful and vocal with the client about your philosophical approach to conflict resolution. If the client desires a scorched-earth, uncivil approach, counsel the client on the potential impact—time, cost and possibly a damaged reputation in the market. Or have the courage to simply say: “That’s not how we work.” There’s another client around the corner.

Commit to pragmatism

“Pragmatic” /prag’madik / adjective: “Dealing with things sensibly and realistically in a way that is based on practical rather than theoretical considerations.” As a community, lawyers tend to get mired in technical, theoretical arguments. While often compelling, we owe it to our client to resist pursuing an academic approach to their conflict. Ask: Does this argument or position further the resolution or further the dispute? Academia and theory have a purpose, of course, but one thing that a professor never has is a client, so let’s avoid the professorial approach to disputes and stay grounded in pragmatic solutions.

Rethink the concept of alternative dispute resolution

It’s time to put the “A” back in “ADR,” or alternative dispute resolution. An expansion of rules and regulations have often made “alternative” options no different than the formal litigation that they were meant to replace. Arbitration, especially when utilizing the behemoth firms, is now highly regulated, rendering the process often equally time-consuming and just as expensive as litigation.

Today’s arbitrations are no longer the true “alternative” that they were intended to be. But lawyers did that—we overengineered the system, even if well-intentioned, and slowly eroded the underlying purpose. In addition, most arbitration firms are staffed almost exclusively with retired judges and litigators. They are performing the same service, in the same manner, as they did in the courtroom, so why do we expect that they will be champions of the alternative?

Instead, why not seek out neutrals who are former GCs, executives and other subject matter experts (HR, finance, contracts) who may bring a more practical view of the underlying dispute? That would certainly help bring some “A” back to the “DR.”

Commit to mediation

Revisit your contract templates, which likely all include a mandatory arbitration clause, and consider requiring mandatory mediation, as well. Then truly lean into the mediation process. If done right, mediation is the most cost-effective, pragmatic and amicable way to resolve disputes. So why isn’t it always Plan A?

This is clearly not an exhaustive list, but hopefully it’s enough to start a conversation and possibly a path out of the current state of divisive, expensive, unnecessarily technical dispute proceedings. Again, conflict is unavoidable and will always exist, but we can control how it’s resolved.

If the legal community reinvents the resolution process, maybe we will gain a reputation as problem-solvers. Let’s pursue true alternative options, control our intellectual ego, lead with respect, and view the concept of compromise as not only an admirable goal but a win. Then we will return to pragmatic, civil conflict resolution.

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Scott Chaplin worked as a public company chief legal officer for more than two decades in a variety of industries, including technology, life sciences, defense and national security, consumer products, retail and manufacturing. He also worked as a chief human resources officer, board member and arbitrator/mediator.

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ABAJournal.com is accepting queries for original, thoughtful, nonpromotional articles and commentary by unpaid contributors to run in the Your Voice section. Details and submission guidelines are posted at “Your Submissions, Your Voice.”

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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Trials & Litigation

After sanctions threat, Trump lawyer in $83.3M defamation case drops conflict claim stemming from BigLaw overlap

By Debra Cassens Weiss

January 31, 2024, 10:24 am CST

A lawyer for former President Donald Trump is backing away from a claim that an opposing lawyer and the judge in a defamation case involving writer E. Jean Carroll had an undisclosed conflict of interest.

Trump lawyer Alina Habba had told the New York Post she will appeal an $83.3 million verdict against Trump partly because the plaintiff’s lawyer and the judge both worked at Paul, Weiss, Rifkind, Wharton & Garrison in the 1990s.

Habba said in a Jan. 30 letter to U.S. District Judge Lewis Kaplan of the Southern District of New York she is now satisfied that there was no “mentor-mentee relationship” between Kaplan and opposing lawyer Roberta Kaplan, who are not related, when they worked at Paul Weiss.

Law360, Reuters and Bloomberg Law have coverage.

Habba had raised the issue in a prior letter, leading Roberta Kaplan to respond that the accusation of such a relationship was “utterly baseless” and she reserved the right to seek sanctions if Habba continues her “false accusations of impropriety.”

“From the very start of the recently concluded trial, Donald Trump and Ms. Habba have pushed a false narrative of judicial bias so that they could characterize any jury verdict against Trump as the product of a corrupt system,” Kaplan wrote in her own letter to the judge.

Jurors awarded $83.3 million to Carroll on Friday in the writer’s second defamation lawsuit against Trump for denying her claims of sexual assault in a department store dressing room during two time periods—before October 2022 and after a defamation verdict in May 2023 in the first case. Jurors awarded Carroll $18.3 million in compensatory damages for defamation and $65 million in punitive damages.

Jurors in the first case found that Trump had sexually abused Carroll but did not rape her. Carroll was awarded $5 million in damages in the prior case partly for the sexual assault under a law giving survivors a one-year window to sue for time-barred claims and partly for defamation stemming from a denial by Trump in October 2022.

Habba still plans to appeal both verdicts. Habba said in her first letter to Kaplan his “overtly hostile” treatment of Trump and his “preferential treatment” of Carroll’s lawyers would be an issue in her appeal.

Another issue in the second case could be whether the punitive damages are excessive under the due process clause.

See also:

“Judge chastises Trump in defamation trial, lectures lawyers on procedural rules, says ‘this is not a tag-team lawyering’”

“Is it possible to both hold a peaceful protest and allow a controversial speaker to speak?” Cassandra Hill, the dean of the Northern Illinois University College of Law, posed this question to me last month, as she moderated a LexCon ’23 panel, which explored how schools can support students and protect First Amendment rights during times of conflict.

Fellow panelists included Mark Cordes, a professor emeritus at the Northern Illinois University College of Law; Michael Schwartz, dean and professor at the University of the Pacific McGeorge School of Law; and Matthew Streb, chief strategy officer and professor of political science at the Northern Illinois University.

Several attendees laughed sympathetically in response to Hill’s question, their reactions reflecting fraught experiences navigating this seeming minefield of competing free speech interests.

“Because I’m an optimist and believe in upholding constitutional rights, the answer must be yes,” I said.

Below are four strategies that I shared that law schools can employ when seeking to uphold the First Amendment, equip students to enter an adversarial profession, and inspire students to lead in a pluralistic society fractured by conflict.

1. Provide students with written policies governing speech-oriented events at the beginning of each academic year

Waiting to disseminate policies until a controversial event is scheduled may lead students to conclude that the policies are motivated by the administration’s views on specific topics, rather than transcendent principles that would be applied evenhandedly, regardless of viewpoint.

Proactively distributing policies as part of the law school’s orientation process allows for a broader discussion of the constitutional and academic principles at stake, separate and apart from any particular ideological issue. The policies should:

  • Affirm all students’ First Amendment rights. The U.S. Supreme Court famously found in the landmark case Tinker v. Des Moines Independent Community School District in 1969 that it “can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

  • Outline students’ First Amendment rights as applied to events. Students have the right to host a speaker who expresses controversial ideas, and other students have the right to listen to such a speaker. Dissenting students also have the right to protest the speaker or engage in counterspeech.

  • Demarcate constitutional guardrails and speech/expressive conduct that is unprotected. The Constitution does not protect counterspeech or protests that disrupt the speech/event or prevent other students from hearing it, harassment or threats that are targeted toward people, and incitement—advocacy that is “directed to inciting or producing imminent lawless action” and “is likely to incite or produce such action,” as noted in Brandenburg v. Ohio in 1969.

  • Outline actions that the law school will undertake if students engage in constitutionally unprotected speech/expressive conduct. Notifying students of how the law school will respond to harassment and threats, incitement, violence or disruption of speakers/events will help protect students’ due process interests. This notice should include the process that the law school will utilize to determine whether such speech/behavior has happened and disciplinary actions that may result. Given the ambiguity surrounding some of these issues, presenting these policies in advance of scheduled events will allow for a more constructive and less emotionally charged discussion regarding the parameters of protected/unprotected speech.

  • Commit to viewpoint neutrality. Because regulation of speech cannot be “an effort to suppress expression merely because public officials oppose the speaker’s view,” as noted in Perry Educ. Ass’n v. Perry Educators’ Ass’n in 1983, law schools should emphasize that time, place and manner rules regarding hosting of speakers will be uniformly applied, regardless of viewpoint.

  • Define what a successful controversial event on campus looks like. In an age when clips of protesters confronting and preventing controversial people from speaking circulate on social media, schools must define success from the institution’s perspective. Schools should state that if a student organization seeks to host a controversial speaker, the school’s goals will be to ensure that the students can hold the event, students who wish to attend and hear the speaker can do so, and dissenting students can protest and engage in counterspeech, as long as the event is not disrupted. Institutional success is all students being able to exercise their First Amendment rights; institutional failure is any of these groups being prevented from doing so.

2. Equip students with skills to constructively engage in civil discourse

Communicating effectively in contentious environments is neither intuitive nor easy. Rather, it requires emotional intelligence, active listening, analysis of differing perspectives, and sincere attempts to find spheres of mutuality, if possible.

As such, in addition to the negotiation and mediation courses already offered, law schools should provide interactive workshops and training on these “soft skills.”

This will not only equip students to engage in civil discourse in law school but also enhance their efficacy in negotiations, settlement conferences and business transactions once they begin representing clients.

Additionally, law schools should encourage student organizations that represent seemingly opposing perspectives to sponsor joint events on topics of mutual concern.

In the past, the American Constitution Society, a progressive legal organization, and the Federalist Society, a conservative legal organization, have co-hosted events on topics that include criminal justice reform, term limits and hate speech.

But the number of events that they have co-sponsored reportedly has declined in recent years, thereby diminishing opportunities for students to practice the art of disagreeing agreeably.

Encouraging student organizations from disparate perspectives to co-sponsor events on controversial topics will help students refine their negotiation skills, normalize civil communication during conflict, and find common cause—despite deeply held differences.

3. Make the case that civility and free speech are virtues worth upholding

“The freedom to speak and the freedom to hear are inseparable,” then-Justice Thurgood Marshall asserted in his dissent in Kleindienst v. Mandel in 1972. Civility and the First Amendment are therefore inextricably intertwined, as civility is what enables competing First Amendment rights to be given effect in a pluralistic society.

For those who view civility as a weakness, seeking to silence a speaker who expresses objectionable views may seem appealing, while allowing such speech to happen may feel like acquiescence.

But when only the loudest voices can be heard, the First Amendment is rendered inconsequential, and everyone’s free speech rights are more insecure. But civility—rooted in respect for the rights and dignity of all people—preserves everyone’s ability to speak and be heard.

Moreover, choosing to communicate winsomely increases the likelihood that those who initially disagree may be persuaded.

Ironically, civility and compelling counterspeech—not censorship—are the forces most likely to defeat offensive views, for merely silencing such views does not extinguish them.

As then-Justice Louis D. Brandeis concurred in Whitney v. California in 1927, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech—not enforced silence.”

4. Provide support to students who are negatively impacted by inflammatory speech

That the Constitution protects expressing certain ideas that many people may find detestable does not render such speech easier to hear. Law schools should acknowledge this tension and provide students with support in addressing these emotions.

This may include making counselors available when controversial speakers are scheduled, facilitating group discussions for similarly affected students, or offering workshops on navigating trauma and emotional triggers.

Law schools also should uniformly enforce their harassment and bullying policies if protected speech devolves into constitutionally unprotected harassment, threats or incitement.

While some people may deride these supportive resources, if speech is powerful enough to influence crowds, governments and movements, it is unsurprising that it may also influence some students’ emotions. Acknowledging this impact and providing support only underscores the power of speech.

Embracing the marketplace of ideas

For law students to fully harness their potential as lawyers and future leaders, they must be empowered and equipped to embrace the caldron and crucible that is the marketplace of ideas.

As the Supreme Court found in Keyishian v. Board of Regents in 1967, “The nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas, which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.’”

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Erika N.L. Harold is the executive director of the Illinois Supreme Court Commission on Professionalism. Harold leads the commission’s extensive educational programming focused on advancing professionalism among the state’s lawyers and judges to build trust and confidence in the justice system.

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ABAJournal.com is accepting queries for original, thoughtful, nonpromotional articles and commentary by unpaid contributors to run in the Your Voice section. Details and submission guidelines are posted at “Your Submissions, Your Voice.”

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.