The Impact Of Epithetical Approaches To Dispute Management

Author Richard Solomon is a conflicts and crisis management lawyer with 50 years of experience in business development, antitrust and franchise law, management counseling and dispute resolution including trials and crisis management.

The term epithet is most commonly thought of as just using cuss words. The dimensions of epithet are many and diverse, and their applications materially adverse to those who use them when it comes to avoiding or managing disputes, For example, everyone who can now look back on an adverse dispute resolution result will be able to remember that in the beginning there was a lot of emotional input. Furthermore, that input was egged on overtly or subtly by their lawyers. The angrier your client can become and the longer you can help to keep him angry, the larger will be the fees earned by “helping” him through the event.

Epithetical approaches are the least positive result productive and the most expensive way to deal with tough situations. By way of sarcastic example, consider that the names we call those we dislike tend to make whatever the chasm is between us wider, impassible, outrageously costly. The obvious “son-of-a-bitch” is simple and mild. Think terrorist, gangster, communist, socialist, rabble rouser, shyster, dead beat, malcontent, ingrate, Hamas, Hezbollah, Nazi, bomb thrower, jihadist and so on. How does identifying a potential adversary as one of these help to get through the rough process? It doesn’t.

Most of the time the accusation is also simply wrong. Your adversary may have a sincere belief that he is right – that his position lies upon solid ground. A good many times – as I have found in the last 52 years of dispute resolution practice, when you first call him that name, you will not yet have total command of all the facts and you will later find out (when all the facts are martialed and assessed by someone without passion) that you are not in as perfect a position as you assumed when you sent that first email; let out that first press release or took other first step actions that angry people tend to take when they are accused of doing something wrong or when they think someone is fudging on obligations.

Think, for example, of the campaign against Ralph Nader that General Motors waged when Nader challenged the safety of the Corvair. Just the cash that GM paid to Nader when the lawsuit was resolved over GM having his hotel room bugged sufficed to finance the establishment of the Center for Automotive Safety. The additional costs incurred by GM’s insisting that it could do no wrong include not only expenses directly related to the Corvair, but market injury suffered by GM generally resulting from the enormous blunder; being inattentive when Ford developed the Mustang and when Honda came into the United States market. The accumulated injury came from arrogantly insisting that there was something called the General Motors Way and that no other approach was either correct or to be tolerated. To this very day with its scandalous behavior regarding recalls and faulty electronics, we can see that the General Motors attitude has not changed in the least. They still advertise that they are “professional grade” people – nothing could be further from the truth and they are the only ones who don’t know that. GM has turned itself into an excellent case study in how not to deal with risk and confrontation. General Bullmoose is long dead, and that is true for GM as it is for any other company with similar inclinations.

General Motors is an extreme example of epithetical thinking, but not even they can afford what they are now caught doing. Even if your company is publicly held and you are playing with shareholder money rather than your own, epithetical thinking, assessment, analysis of the essence of any dispute makes its resolution much more costly in dollar terms and in market position/reputational injury. Never let your PR people or your lawyers cheer you on to be overly adversarial. There are always less costly and quicker ways to get beyond any dispute. And no matter what you may think at that first moment, you may not be in the enviable position you thought you were in then. Ultimately you will receive greater respect and accolades for a more mature manner of dealing with adversity than you will get from being just another corporate loudmouth later proven wrong, or at least not right.

What is required to head off confrontation is that you step back from what your training and your instincts have conditioned you to do in the face of perceived adversity. If you were an elite unit military person you were told never to hesitate to shoot or you will end up dead. You normally would think that you must present an intensely adversarial front or be consumed by a more aggressive opponent.

In dispute avoidance management and in dispute resolution management you must take another approach while keeping open the option to shoot if the more reasoned, outside the box techniques do not produce at least positive movement. How that is accomplished differs somewhat with the particular facts of the situation and with the chemistry that has resulted from what has already happened that cannot be taken back. That is the point of differentiation between the template following traditional law firm and PR group and the expert crisis avoidance/management resource.

I am not supposed to be blunt here, but I would rather risk being politically incorrect that fail to get my point across. I want you to think of how I do things as handling it so that you do not have to attempt the burden of stuffing the shit back into the horse. In its best mode that is more likely to be the positive result if I am consulted very early on, before you have made any move or response to anything that falls within my definition of being epithetical. You can deal with an adversary being epithetical if you can contain yourself – keep your head when all about you are losing theirs, as Kipling put it. When your normal professional resources are telling you to follow your instincts and your former training, it is very hard not to go in that direction. But when you disregard the adversaries and act/speak as though you have command authority when in fact you may not have command authority, you always get the General Motors result. You usually do not know for sure whether you have command authority that early on. All too often what comes out later makes you look dishonest or out of touch. You don’t have to do that to yourself.