What's Your Conflict Quotient?

“Conflict has a life of its own”. Although we may have heard this statement before, few of us would admit to understanding it. Although most lawyers are accustomed to the conflict inherent in litigation, I wager few have had the opportunity to study the dynamics of conflict, its origin, and its relationship to litigation.

Conflict unfortunately begets lawsuits: it behooves lawyers to understand and appreciate the essence of conflict because its progeny often result in litigation. The understanding and appreciation of the fundamentals of conflict enhances a litigator’s control and effectiveness. Equally important is the theory that every individual has his own “Conflict Quotient”. And while admittedly, this is a very unscientific theory, “Conflict Quotients” do indeed exist and are readily observable every day, that is, if you know what you’re looking for.

A “conflict quotient” is the depiction of the relationship between a person’s tolerance level for conflict and the magnitude of the conflict itself. The greater the chance that the life of the conflict will be short, the lower the quotient will be. Conversely, the greater the chance that the parties are in it for the long haul, as it were, the higher it will be.

But before we get too far ahead of ourselves, let’s briefly look at the nature of conflict itself. There exist various definitions and philosophies addressing conflict, and some are more widely known and accepted than others.

Eastern cultures embrace conflict, knowing that it is only an interference of opposing energy patterns. Simply put, two or more person’s positions (energy patterns) are at odds or inconsistent with those of the other’s. The word “embrace” is deliberately italicized. Eastern cultures urge us to welcome, if not befriend, conflict in order to align our intentions and energies with it, thereby offering little – if any – resistance. Once so aligned, we are able to move positively through the conflict, gradually embracing the outcome. One Eastern philosopher has described this principle as, “Embrace Tiger, return to mountain”.

This eastern approach to conflict removes the pejorative connotation from the word, and the corresponding negative anticipation of the experience. Viewing conflict within a neutral – rather than negative – framework provides the participant with an active, integrated paradigm. That is, combine objectivity with a ready-made strategy for moving through conflict positively, acknowledge and excise the emotion, focus on the relevant issues and ultimately, achieve accord. That is a nice – and achievable – paradigm.

Most attorneys strive to remain objective and analytical when studying the issues and angles of a case. Most mediators strive to remain neutral throughout mediation, enabling and empowering the parties to effect a realistic, equitable settlement. And the modern warrior (litigator) is much stronger and much more effective when armed with a working philosophy to take into battle (the conflict): he must determine, interpret and apply his own – and his client’s – conflict quotient.

Conflict quotient? Here’s the simple math: picture the numerator (the number on top) as a person’s capacity (or lack thereof) to tolerate conflict. The denominator (the number on the bottom) represents the gravity (or lack thereof) of the conflict. The relationship between the two equals an individual’s “conflict quotient” which is unique, not only to each person, but also to each person within a specific conflict situation. Grasping the effects of the applicable conflict quotient(s) can be key to a lawyer’s (or anyone’s) evaluation of a client’s case (or situation).

For example: suppose a client has indicated that his intention is have a lawsuit settle well in advance of trial. Perhaps he has even told his lawyer that he doesn’t want the expense, time, publicity or emotional drain associated with litigation. In this case, let us assign the number “1” as the numerator of this person’s conflict quotient. (On a scale of 1 to 10, this person demonstrates a low capacity for conflict in this particular situation).

Assume further that the nature of this particular conflict is very serious and this client has suffered (and may continue to suffer) serious repercussions. Let us assign the number “10” as the denominator of this person’s conflict quotient. (On a scale of 1 to 10, the nature of the conflict itself is severe in this particular situation).

The resulting number – 1/10 represents the client’s low capacity for conflict coupled with a grave conflict situation. It illustrates the client’s low “conflict quotient” – one tenth (.10). Using this theory and information, a lawyer is now better able to assess the client’s case from a situational perspective, one that is wholly distinct from his legal analysis, yet bears upon the outcome.

It follows, I think, that if a client has substantial monetary resources and/or maintains a position that supports an acceptance of conflict situations, we might assign the number “8” as the numerator. And if the nature of the case is not all that grave, we might assign a low number as the denominator – perhaps the number “3”. In contrast to the first example, then, this person’s conflict quotient is much higher, or 8/3 (2.66). This insight can be added to the lawyer’s other tools and be used to achieve a more sophisticated and balanced approach in analyzing strategies for the conflict.

Of course, there is another layer here that bears consideration – the lawyer’s own conflict quotient. What happens when the lawyer’s conflict quotient is low, but his client’s is high? Or when the client’s is low but his lawyer’s is high? Each individual’s conflict quotient is integral to an accurate reading of the “life” of the conflict, quite apart from parochial legal analysis.

A litigator’s lament: “This is a case that should have settled long ago”. Perhaps one of the reasons that most conflict has a life of its own – whether short-lived or lengthy – is that each party has his own capacity for conflict that is affected by the nature of the conflict itself. Truly, a lawyer’s high conflict quotient can easily fuel the litigation process if he’s unmindful of it. Really, look at the possibilities: mix one part lawyer’s high conflict quotient, add one part client’s equally high one. Add one part opposing counsel’s high conflict quotient and one part her client’s equally high one. And oh, what a beautiful brawl! [With apologies to Walt Disney’s movie Robin Hood].

So…what are some of the strategies a lawyer might use to accommodate a client’s conflict quotient? First, act as a reality check for the client. Determine if he understands what can actually occur in litigation … the time involved, expense, emotional commitment and tediousness. All of this can deflate even the staunchest. Second, ensure that the client comprehends how the legal process might affect him. Litigation has given birth to divorces, love affairs, family discord and financial problems. Don’t underestimate the human element here.
Third, fully explain the discovery process. Discuss the inevitable feelings of invasion of privacy and their accompanying stress. Fourth, endeavor to ascertain the depth of the client’s commitment to the process and its unguaranteed result. This step is important to alleviate disappointment at the end – both his and yours. Fifth, observe the client’s attitude and demeanor. If he is quick to anger, is always “running behind,” and wants to leave the details to you, he is sending clear messages about his tolerance level for conflict. Determine his litigation style: there’s a deep chasm between micro-manager and phantom clients. Make sure you’re comfortable with the client’s style. If not – act accordingly, and quickly.

Finally, try to construct your own – and the client’s – conflict quotient. Compare and contrast these computations with those of your opponent(s). Take note of the discrepancy, if any, among the applicable conflict quotients and implement your case strategies accordingly.
In sum, try to ensure that whatever “life” the conflict has is one that is not exacerbated by you or your failure to analyze all of the elements of the case – including the conflict quotient theory.

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