By Joseph Famulari

Volatility, uncertainty, complexity, and ambiguity.

When reading these words, one may assume they mean to describe 2020’s chaotic nature. But while this may be partly true, the acronym serves as an example for how leaders across the commercial spectrum, including in the ADR community, look to reflect, learn and adapt to the circumstances living in a “VUCA” world entail.

The overall theme of this year’s CPR European Conference on Business Dispute Management, held online, was present during “Evaluating and learning from disputes in a VUCA world,” a seminar that took place on the conference’s first day, Sept. 15.

Moderated by Noradèle Radjai, a partner in the international arbitration team at the Swiss Law firm Lalive, the panel explored how unpredictable conflict requires agile thinking, adaptability, and a growth mindset. Panelists answered vital questions such as “How do companies learn?” “What is the role of firms and in-house counsel in promoting learning?” and “How does one grow a learning mindset among dispute specialists?”

Laura Abrahamson, former Senior Vice President, Deputy General Counsel, and Head of Litigation for AECOM, an engineering and infrastructure company based in Los Angeles, led the panelists to emphasize “presentness” to counter the world’s hectic nature–that is, problem-solving strategies should be implemented in real-time, to get ahead of issues that may arise, rather than tackling issues far after the fact.

She stressed that corporations must have the vision to align stakeholders against a common goal, to counter volatility and display agility to adapt and counter ambiguity. By scaling back in real-time problems present in disputes, companies can achieve adapt by adopting practices of collaboration, and reflecting and measuring the outcome against agreed-to metrics.

Abrahamson emphasized that organizational learning must take place to learn from disputes and speed best practice adoption. Using slides, Abrahamson highlighted that organizational learning should be a critical role of inside and outside counsel to speed best practices adoption; by developing a root-cause analysis capability, counsel can convert findings to actionable improvements.

Also, organizational learning involves developing a post-mortem after disputes to establish and communicate lessons learned. Once these learnings are channeled to continuing or new projects, the root-cause analysis can promote corrective action to the prior failures, build upon the successes, and speed best practices adoption for the company.

Next, Mallory B. Silberman, a partner at Arnold & Porter in Washington, D.C., led with an explanation of how the VUCA world is present all around us–including her dogs waiting anxiously for her just outside the confines of the virtual panel. Silberman explained that the solution to VUCA—again volatility, uncertainty, complexity, and ambiguity–is a different VUCA: Vision, Understanding, Clarity, and Agility, with an emphasis on understanding.

Through this, Silberman expanded on how teaching is complex, and detailed how this complexity comes into play through education roles’ fluidity and how the role between teachers and students often becomes interchangeable.

She explained three types of students in her experience: The first type is actual students, the ones she teaches in the classroom, developing practical skills in advocacy. Next are clients that are advised on practical and procedural issues, how to conduct virtual hearings, and who counsel details on how to bring fair and equitable treatment to investors. The third category is colleagues and peers–meaning that everyone can learn from everyone’s experiences, through teaching colleagues within the firm and organizing hearing simulations, and a platform for improved empathy and more precise expectations develops.  The student/teacher relationship is essential to maintaining and streamlining information.

Focusing on these relationships adequately and improving methods of conveying and receiving new information is vital to a firm’s success in an ever-increasing VUCA world.

Silberman highlighted the receptivity of the student categories, and expanded on the point by stating, “Will this benefit them somehow?” She concluded by saying, “If you follow up with a quick check-in after a filing/hearing, it is more likely to promote learning going forward.”

Finally, Reza Mohtashami, a London partner at the Three Crowns LLP law firm, addressed how dispute specialists embrace a learning mindset. “Every dispute arises in a volatile, complex set of parameters,” he said.

In Mohtashami’s eyes, every day operates in a VUCA world. To highlight this, he went on to discuss the most cataclysmic events in the Middle East and MENA (Middle East, North Africa)  region:

• The events of the Arab Spring, which were not widely predicted and understood at the time;
• The nuclear accord entered into by the U.S. and other nations with Iran, and the Trump administration’s rollback of the deal, with foreign investors realizing the possibility of reimplementation and maintaining their own levels of protection, and
• The Qatar blockade, highlighting the capacity of the Qatar government to retool its economy in the face of isolation by four big regional powers.

He discussed how dispute lawyers are adapting their practices always under scrutiny; with the contentious process making dispute lawyers more nimble than transactional lawyers. In highlighting these instances, Mohtashami painted a picture of how events such as these can foster a learning mindset among dispute specialists.  In tune with the prior speakers, an emphasis on quick-thinking, self-preservation, and adaptability are key. Though about the Qatar blockade, he says another lesson learned is, “if the country affected has deep pockets and is able to cushion the blow from an embargo on its economy, it will always be ready.”

Noradèle Radjai asked, “Do we first have to unlearn some practices” to succeed in a VUCA world? Mohtashami answered, “To some extent, yes, experienced arbitrators have a set way of conducting their arbitrations. But on the whole, people learn to adapt with best practices because it’s a competitive practice, and if you don’t do that, you get left behind.”

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The author, a CPR Institute Fall 2020 intern, is a second-year student at Brooklyn Law School in New York. CPR Institute Fall 2020 intern Cristina Carvajal, a student at the City University of New York School of Law, assisted with the research and writing of this article.

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