Like many, I was fascinated by the World Cup of Football (Soccer, to the North Americans) the past month.
Unlike most, I expect, I kept thinking about the lessons it offers for dispute resolution.
Here are just a few.
- Playing to Win vs. Playing to Not-Lose
The early round robin phase of the 2014 tournament was incredibly exciting, with lots of drama, goals scored, some upset victories and unlikely heroes (and goats). That’s because teams had to win to get to the next phase, and the number of goals for and against could be a deciding factor. So teams went all out to win and score goals. Winning one or two games was critical. Losing a match was not fatal (though losing two would be…). Simply tying every match was not good enough.
That all changed in the knockout round of 16 teams. Lose and you’re out. So the play became much more cautious and boring. Matches went into extra time, as teams tried to wear each other down and wait for a defensive error. Many ended up in a penalty shootout, which is a more or less random way to pick a winner. But that’s OK – the team that loses on penalties cannot really be blamed. Just look at Brazil’s 7-1 fiasco and Netherland’s 4-2 loss on penalties in the semi-finals. The Brazilians were devastated; the Dutch shrugged and said better luck next time.
In business, executives have no trouble shrugging off the loss of an important customer or contract and moving on to the next opportunity. They know that winning is more important than not losing.
But when it comes to a legal dispute, the fear of losing is much greater than the desire to win.
This is especially true for the lawyers. So the result is very defensive – and expensive – litigation and arbitration. Endless discoveries, thousands of documents to review, every motion hotly contested, trials, appeals – it goes on and on.
Everyone knows there are more cost effective ways to resolve disputes, through mediation or expedited arbitration. And in the end, the result is likely to be the same, at a far lower cost. This is especially true in the commercial world. Most businesses will have many smaller disputes; rarely a single “bet-the-company” case.
But the business mindset – like the risk-taking play in the open round of the World Cup – quickly gives way to the legal mindset – like the defensive play in the knockout stage.
- Quality Wins
As usual, there was lots of melodrama, play-acting and diving in the World Cup. Some teams and players are better than others, but they all do it.
The surprising thing is how rarely the umpires are taken in, although they rarely called anyone for diving. (I believe the only yellow card for diving was in the Brazil-Netherlands consolation match, long after it ceased to matter.) But I loved watching umpires smile and shake their heads when a player went down in overly dramatic fashion. “Play on,” they said. And the players did.
Occasionally, an official is taken in and awards a yellow card or penalty shot. But it rarely affects the outcome of a match. In the end, good tactics and team play beat fakery.
The same is true in legal disputes. Exaggerated claims, dissembling and cover ups may appear to confer short-term tactical advantages (procedural victories, pressure to settle, etc.) but in the end the real advantage in mediation and arbitration lies with the party that has facts and law on its side.
Spend time on making the most of those advantages – and dealing with the real flaws in a case – not on shirt-tugging, diving and yapping at the umpire.
- It’s a Team Sport
Lionel Messi may be the greatest football player in the world and the winner of the Golden Ball as most valuable player in the World Cup. But Argentina came up short because the team behind him was not deep enough.
Germany has its share of stars and talent, but they also played a total team game at every position.
Winning the game of dispute resolution – getting the best result for your side – is also a team effort. Hiring the best (or most expensive) attorney won’t guarantee success. Nor will the most renowned expert witnesses. Everyone involved in a dispute – the parties, witnesses, support staff, professional advisors – must put forth their best efforts to present the strongest possible case.
Quick settlement, successful mediation or winning at trial or arbitration – it doesn’t matter – most of the time, the stronger team will win.
It was true at the World Cup and it’s true in dispute resolution.