Partnering: A Game-Changing Ser vice to Add to Law Practice
by Gerald S Clay
What Is Partnering?
Partnering is a process for guiding parties in a common endeavor to work together as a cohesive team. Relationship-building, goal-setting and a commitment to address and solve problems by consensus are central to the process 1
While traditional litigation, arbitration and mediation apply to oppositional disputes, Partnering services provided by lawyers sidestep the adversary process. Cooperatively, parties establish guidelines, responsibilities and benchmarks to reach a client’s desired achievement or ag reement Problems are resolved as they arise, before positions become entrenched.2
Over more than three decades, Partnering has proven its worth time and again It has been embraced by mammoth institutions such as the U S Ar my Cor ps of Engineers, which mandates the use of the Partnering process, and
the Califor nia Department of Transportation (Caltrans) Success stories in Hawaii additionally demonstrate Partnering’s benefits in a range of scenarios
Lawyers who facilitate Partnering shift a g roup ’ s focus from confrontation to cooperation This technique, proven successful in diverse milieu, aligns with contemporary research showing that people achieve optimal outcomes in collaborative environments 3
The
Power of the Partnering Process
In a profession where conf lict is expected and epic battles are routinely fought in courtrooms, Partnering offers an alter native to traditional legal procedure While the legal system has long operated through adversary proceedings that produce winners and losers, Partnering is a forward-thinking, relationship-driven method that builds
upon trust between group members.
Rather than replacing legal expertise, Partnering enhances it. The attorney, acting as a Partnering facilitator, helps clients reach targeted goals. Lawyers providing this service offer an appealing option that keeps parties out of court.
By fostering mutual understanding, aligning shared objectives and solving problems before they become divisive, Partnering prevents costly, win-or-lose disputes and simultaneously fosters longterm relationship benefits.4
Law schools teach dispute resolution, a system based on determining right and wrong ostensibly through the discovery of “truth.”5 For civil cases, the party who presents a preponderance of the evidence (50% plus 1) wins at a trial. But as practicing attorneys, we should consider alternate approaches that can better serve clients’ needs.
For parties involved in a common endeavor, Partnering is a better way. It’s ideally suited for matters involving negotiation and shared goals. Partnering flips the script on dispute resolution and moves beyond adversary proceedings such as litigation, arbitration or mediation.
For example, a client who hires an attorney to draft and execute a contract between two wary business owners may confront difficulties leading to adversary proceedings. An attorney using the Partnering approach would bring parties together as part of the drafting process, proactively addressing all important issues, resolving misunderstandings and avoiding escalating difficulties.
Team-building activities deliver results, beginning with heightened trust and effective communication. As a team, parties brainstorm and agree on issues to be considered. Moreover, momentum is preserved by an agreedupon system to solve problems as they
arise, rather than after they escalate into hardened, emotional differences.
Partnering facilitation is more than an additional service; it incorporates a new paradigm, shifting a lawyer’s focus from reactive, adversarial dispute resolution to proactive, team-oriented problem-solving and goal achievement. The power of a paradigm shift can be transformative—on a global scale, and within an industry—and it benefits the legal profession to harness it.
Limitations of the Adversary System
The American legal system operates under an adversary model. Within this model, attorneys prioritize legal advice and legal strategy over relational skills.6 Lawyers representing opposing parties argue the application of law to their legal positions and contest the validity of facts presented by the opposing disputant, all with the singular vision of “winning.”
Legal competency in adversary proceedings remains essential to the practice of law. However, clients increasingly seek attorneys to provide services that go beyond fighting and winning legal arguments.7 In this type of client-attorney relationship, the client trusts the attorney to understand their
broader business and growth interests and concerns.
To incorporate Partnering in a law practice is to integrate strong client relationships with legal knowledge and expertise. This better serves client expectations, producing stronger, more satisfying outcomes.8
Exceptions to Partnering: Non-Relational Disputes
Partnering is not applicable to nonrelational disputes, which include accidental torts, lawsuits for social change and criminal matters. These disputes require comprehensive factfinding and legal conclusions.
However, the adversary system is largely detrimental when applied to relational disputes, which include disputes among parties working together to achieve common goals. In these situations, the competitive nature of the adversary process can damage and even destroy relationships.9
Mediation: Problem-Solving, but Incomplete
Mediation emerged in the 1970s as a less combative alternative to traditional dispute resolution. It involves a neutral third party, the mediator, who facilitates
bargaining to reach a mutually acceptable, comprehensive settlement
In mediation, the mediator guides each party to focus on long-ter m best interests rather than short-ter m victories.10 This represents prog ress toward collaborative problem-solving, but it remains a reactive approach that addresses disputes only after they arise. Mediation lacks tools for team building and continuous problem resolution.11
Partnering is not a substitute for mediation or other processes applicable to g roups already entrenched in opposition Partnering’s value applies to parties seeking a common way forward.
Partnering Uses and Characteristics
Partnering is useful to g roups, large or small, that are engaged in a joint relationship, project or mission. The process develops commitment and cooperation among participants, and eases decision-making.
Potential applications for attor neys include:
• Facilitating dealmaking and ag reements.
• Facilitating institutional evaluations of inter nal rules, roles and processes
• Guiding g roups to strategize new legislative initiatives
• Developing plans to merge or separate organizations 12
There is no single approach or recipe for success Activities depend on the specific makeup of the g roup and its goals 13
Partnering varies from project to project, depending on the nature of the project and the composition of its stakeholders. However, there are characteristics common to all:
• Shared interests. Stakeholders unanimously ag ree on a shared vision and common objectives.
• Commitment Each stakeholder is dedicated to the success of the project
• Teamwork. Stakeholders work together for mutual success, reducing friction and improving results
• Trust. Stakeholders build trust through open communication and transparency
• Problem-solving. Stakeholders unanimously ag ree to resolve problems as they arise
• Synergistic relationships. Teamwork translates to collective efforts and outcomes that are more powerful than those of any individual stakeholder 14
To date, Partnering has been used largely in the construction sector, with much success 15 However, its principles good communication, cooperation, collaboration, common goals, problem resolution and dispute prevention have universal application.
Partnering has enor mous unrealized potential to benefit business, gover nment and nonprofit entities as they pursue a diverse range of projects and endeavors.16
A Structured Process
Partnering is a structured process, with certain key elements: •
person] who can inf luence [or affect] the project outcome and/or who is affected by the project outcome ”17
• Identifying stakeholder priorities Participants answer questions designed to reveal g roup concer ns and priorities The responses focus on future needs and
facilitator. During the retreat, participants build trust and rapport, delegate responsibilities a n d
resolution and goals. The retreat must be attended by the highest ranking person from each stakeholder with responsibility for the project.
Stakeholders at the retreat connect and engage with one another on a personal level during the retreat While real work gets done, an effective facilitator will preface serious discussion with enjoyable team-building activities
Participants experience the retreat as rewarding productive and fun
The Partnering facilitator leads the g roup in activities designed to foster consensus decision-making and ag reements. To this end, the retreat takes place in an infor mal and comfortable atmosphere, outside of the workday and ideally outside of the workplace
Retreats span one or more days, depending on g roup size and project complexity During a retreat, stakeholders share each others’ roles and ag ree on delegated responsibilities
Stakeholders identify potential risks and challenges, and develop a problem mitigation strateg y To facilitate this, a problem resolution ladder a methodical tool for addressing and resolving ongoing problems is developed and unanimously ag reed to
stakeholders
• Conducting a Partnering retreat The heart of the Partnering process is the Partnering retreat, a training workshop involving all stakeholders.
The
Par
tnering Retreat
The retreat is a workshop for stakeholders led by a Partnering
Finally, stakeholders create a Partnering charter an ag reed-upon document outlining goals, the g roup vision, commitments and benchmarks going forward 18 The charter is printed and signed by all stakeholders at the retreat.19 The Partnering charter is not a legal ag reement and does not change the ter ms of any existing contracts; instead, it is a moral a g reement between all stakeholders
Facilitating open, honest communication and creating an environment of trust are prerequisites to
successful team-building and Partnering Through these processes, Partnering empowers participants to share ideas and infor mation as they work together to reach consensus ag reements.
Unanimous Decision-Making: Ground Rules
Unanimous decision-making and unanimous ag reements for m the cor nerstone of the Partnering process. Partnering requires participation of all project stakeholders Each stakeholder commits to supporting decisions that serve the collective best interests of the g roup, even when those decisions may not align with an individual stakeholder’s preferences.20 This approach ensures sustainable outcomes that benefit the entire team.21
Typically, the stakeholders’ first ag reement is a unanimous adoption of g round rules to gover n their future interactions Essential g round rules usually include:
escalate to the top of the ladder without resolution is designed and unanimously ag reed to
Having Fun: Nurturing Sustained Initiative and Trust
The Partnering process is structured to ensure that stakeholders maintain focus and engagement throughout. Activities such as team-building exercises, site visits, and social events that create camaraderie and strengthen team commitment are intrinsic to the approach. As project work continues, the g roup may require regular or as-needed follow-up sessions.
Incor porating enjoyable activities and celebrating accomplishments ease the way to building strong relationships and sustaining team morale
Celebrating milestones, whether through recognition ceremonies or infor mal meetings, also reinforces achievements and keeps teams motivated.
• Respectful communication Participants commit to express views professionally, avoiding emotionally charged language, tones or phrases that can hinder productive dialogue
• Active listening Commitment to practice focused listening and to address the g roup only when recognized by the facilitator.
• Concise expression Commitment to communicate clearly and directly, and to limit time spent commenting so that all can be included
• Equal participation. Each stakeholder’s perspective is given equal weight in discussions and decisionmaking.
• Integ rity Participants maintain honesty, transparency and objectivity throughout all interactions
The Problem Resolution L adder : Solving Problems as they Arise Resolving problems by consensus as they emerge is a core element of Partnering A problem resolution ladder is an important tool for doing so. Before the Partnering retreat, each stakeholder answers a set of questions that provide insights into their thoughts and concer ns about future problems These insights help shape the problem resolution ladder
Participants ag ree to each step during the retreat The process:
• Stakeholder representatives identify the responsible individuals at each level of the job
• Participants ag ree on time limits for resolving each identified new problem If a problem is not resolved within the specified time limit, it rises to include the next level of stakeholder decisionmakers
• An approach to resolving disputes that
Having fun enjoying the process of working together contributes to a positive, resilient team culture Within this paradigm, collaboration thrives and problems are more easily resolved.22
Construction Industr y Experience: Partnering’s Sustained Benefits
Partnering outcomes in the construction industry which have been overwhelmingly positive, and conducive to g rowth indicate that the technique can be applied to benefit other g roups, industries and sectors
Partnering emerged in the construction industry, with the U S Ar my Cor ps of Engineers (the Cor ps) leading initial adoption Today, over 30 years later, the industry continues to utilize and benefit from Partnering.
A number of state transportation departments, including the Califor nia Department of Transportation (Caltrans), have integ rated Partnering into their standard practices. Additionally, private-sector fir ms have
used Partnering to address complex construction projects
The evidence for using Partnering is supported by tangible benefits, as reported by Caltrans and the Inter national Partnering Institute and cited by the Cor ps:
• Partnering reduced overall project duration by 20 percent After adapting the Partnering process, CalTrans reported 41 of 42 projects were completed early or on time
• Partnering reduced total project costs by an average of 10 percent According to Caltrans, 32 of 42 projects incor porating the process were within or under budget
• Partnering averted mishaps. Partnered projects saw an 83% reduction in losttime accidents, and 30 of 42 Caltrans projects that used Partnering had no lost-time accidents
• Partnering led to a reduction in rework The Cor ps ’ analysis reports a 50% reduction
• Partnering resulted in far fewer claims of har m or loss The Cor ps ’ analysis shows an 83% reduction in claims, while 37 of 42 Caltrans projects had no claims
• Partnering increased team member job satisfaction by 30% 23 Partnering’s value also extends beyond perfor mance metrics Intangible benefits create lasting organizational value include:
• Relationship excellence Sustained professional relationships are facilitated by benefits including trust and mutual respect among stakeholders, enhanced understanding of participants’ roles and development of long-ter m strategic alliances
• Communication mastery. Partnering
• Improved team dynamics. Benefits include efficiencies created by a united commitment to shared project vision and goals, leverage arising from the diverse expertise applied to collaborative problem-solving, increased innovation through cross-functional cooperation and strengthened organizational alignment across stakeholder g roups.
• Elevated workplace culture Benefits include improved employee morale and job satisfaction, improved conf lict management, enhanced professional g rowth opportunities and creation of a positive, achievement-oriented environment.
• Organizational impact Benefits include strengthened market reputation and brand value, increased customer satisfaction and loyalty, improved quality standards across operations and enhanced ability to attract and retain top talent
• Risk management. Benefits include proactive identification and mitigation of potential issues, a significant reduction in disputes and litigation, enhanced project predictability and improved stakeholder risk assessment capabilities.
• Innovation and g rowth Partnering fosters increased creative problemsolving, enhanced adoption of best practices, improved knowledge sharing across stakeholder organizations and accelerated organizational lear ning and development
These tangible and intangible benefits create a foundation for sustained organizational success, fostering an environment where continuous improvement becomes the standard 24
The Evolution of Partnering in Construction
unexpected issues
During the 1980s, there was a rise in costly construction litigation which prompted the legal and business industries to seek alter natives Hybrid adversary techniques such as non-binding arbitration, mediation, dispute review
boards, mini-trials and other creative techniques were attempted with varying deg rees of success 25
In 1987, the Construction Industry Institute (CII) at Texas A&M University f o
p o f academic, construction-company and federal gover nment representatives to explore the use of Total Quality Management techniques (TQM), with goals including reversing the rise in litigation
Building on TQM concepts, the task force focused on moving from adversary thinking to a new paradigm of g roup cooperation.
During this time, the U S Ar my Cor ps of Engineers (the Cor ps), one of the biggest builders in the world, was experiencing monumental difficulties with completing ongoing projects and starting new ones The Cor ps ’ management was reorganized, and a new CEO, Lieutenant General Henry Hatch, was appointed
When Hatch took command, the Cor ps was a litigant in 1,103 pending lawsuits Recognizing that existing procedures were failing the agency, Hatch committed to finding a better way forward His search for techniques that could both improve construction procedures and prevent or significantly reduce post-construction lawsuits led to the creation and adoption of the Partnering process 26
In 1988, Hatch implemented Partnering techniques on two large projects, drawing from the CII’s task force recommendations Successful results on both projects demonstrate clear benefits, which included: substantial savings attributable to systematic value-engineering; near elimination of lost-time injuries; a significant reduction in paperwork; completion on schedule and within budget; and no outstanding claims or litigation at completion.
I n 1 9 9 1 , t h e C I I t a s k f o r c e
published its report, In Search of Partnering Excellence, defining Partnering as a trustbased, collaborative process to achieve shared goals, offering benefits that include improved efficiency, innovation and quality. The report presents Partnering as a team management approach, applicable to projects of all sizes. This highlights Partnering’s potential to replace adversary relationships with cooperative team dynamics.
For Corps construction projects that used Partnering between 1988 and 2000, the total number of lawsuits filed against the Corps dropped by 82%, and the value of these claims dropped 55%.27
Also in 1991, the Associated General Contractors of America (AGC) endorsed the Corps’ Partnering concept. The AGC reinforced this commitment by publishing a pamphlet entitled Partnering: A Concept for Success, encouraging cooperation to address costly inefficiencies. In 1992, the AGC established the Marvin M. Black Excellence in Partnering Award to recognize successful projects exemplifying Partnering principles. The AGC continues to recognize awardwinners annually.
Over the following decade, the Corps issued nationwide directives mandating adoption of the Partnering process. The U.S. Air Force, the Naval Facilities Engineering Command and other military agencies also integrated Partnering into their construction programs.28
Subsequently, a number of state agencies including Caltrans adopted Partnering for most of its projects.
Partnering Outside of Construction
While construction projects typically have defined beginnings and endings and readily identifiable goals and processes, Partnering in other types of groups or industries may be open-ended, involving diverse stakeholders with
divergent objectives and unknown action steps. In each case, however, the Partnering process remains very similar to its task force model.
Partnering is now a longestablished, proven process. Its benefits have been applied to businesses and projects outside of the construction industry.29
Partnering provides the structure needed to prioritize common goals, assign responsibilities, foster clear and candid communication, establish benchmarks and expediently resolve new and ongoing problems.
The Partnering retreat, the heart of the process, is customized to the makeup and needs of each project. Within its supportive framework, the facilitator elicits productive discussions about values, needs and interests.
Incorporating these approaches to build teamwork and foster collaboration has clear positive value across groups, diverse industries and a variety of public and private institutions.
Partnering Success Stories
Partnering has been successfully applied to local projects outside the construction industry, including state legislation, Hawaii State Bar Association and a Hawaii State Social Service Agency. These projects demonstrate how Partnering can rapidly achieve desired outcomes.
Legislative Success: A Hawaii Tax Initiative
Partnering was utilized in the development of Hawaii state legislation shaping an industry-wide tax.
Stakeholders were highly concerned that the tax, if formulated without recognizing industry conditions, could weaken and even kill individual businesses. The high-risk issue motivated advocates for the tax and industry representatives to use Partnering.
Stakeholders included
representatives from industry and select legislators. All committed to a team-first approach. The group set common goals and sought agreement on issues as they arose, setting a path for unanimous agreement on proposed legislation. This successful outcome led to successful lawmaking, as a tax bill with unanimous industry support was passed and signed into law. The bill itself modified the tax, established legislative oversight and incorporated industry concerns.30
Administrative Success: Bar Association Goal-Setting
The 2013 President of the Hawaii State Bar Association (HSBA) initiated his presidency by engaging HSBA board members and staff in an accelerated Partnering retreat. The diverse group included past and new directors alongside veteran and recently hired staff members.
The President incorporated Partnering to address specific goals, which were agreed to by all. Six months later, he reported, “Thanks to the Partnering process, we have implemented specific, tailored plans to accomplish goals the board and staff set together.”
In 2014, he contacted the Partnering facilitator. “I am happy and proud to tell you that the 2013 Board was very successful in achieving the objectives that we as a group decided to pursue,” he stated.
“The motivation and success we felt and enjoyed came from the fact that we collectively determined what we wanted to achieve and how we would get there, and then put that plan in action ”
“Partnering, which encompasses so much more than the title would suggest, is a process that I believe will improve just about any board, committee or department that commits to and participates in the process,” the President wrote.31
Administrative Success: Agency Transformation
After a Hawaii social service agency suffered downsizing, one division went without a supervisor for months. A prior supervisor returned to the division to find the group hobbled by low morale and internal squabbles. Productivity suffered, as employees and management often disagreed over application of agency rules. Recognizing the need, parties agreed to participate in a Partnering retreat.
A pre-retreat survey helped Partnering facilitators understand employees’ job concerns. This was followed by a one-day retreat.
After the retreat, staff reviewed key agreements and continued ongoing dialogue. Both the supervisor and employees reported improved communication and a more open working environment.
Two months after the retreat, participants shared, “We got to address difficult issues that we just couldn’t talk about in the workplace. We really needed this. It’s really important that we can talk and work together to do our job successfully.”
Institutional Adoption: City and County of San Francisco
The City and County of San Francisco provides another example of successful adoption and implementation of Partnering. The city mandates the use of Partnering for all construction projects exceeding $100,000, reflecting Partnering’s proven effectiveness in project delivery and stakeholder alignment.32
Caltrans Excellence in Partnering Awards
Caltrans, a state agency with an annual budget of over $10 billion, first implemented Partnering in 1992, and now considers the process an integral part of its business.
Caltrans’ success with Partnering includes achieved average budget savings of approximately 10% and accelerated project completion, by an average of six months. The department further reported enhanced trust and increased respect across stakeholder relationships.33
The enduring value of Caltrans’ robust Partnering programs is reflected in the agency’s annual Caltrans Excellence in Partnering Awards. In November 2024, Caltrans issued the awards for a 24th year.
“Partnering is a way of doing business,” Caltrans Director Tony Tavares stated, at the 2024 award ceremony.
Partnering’s Transformational Effects for Lawyers
The shift from traditional, reactive dispute resolution to proactive dispute prevention represents more than a procedural change—it reimagines how lawyers can approach conflict and cooperation. This transformation allows lawyers to move beyond an adversary framework and toward a nuanced, relationship-centered approach.
Partnering introduces essential elements missing in traditional adversary law practice. These include:
•Trust-based relationships that advances collaboration.
•Open communication channels that prevent misunderstandings.
•Shared goals that align stakeholder interests.
•Early intervention strategies that prevent problem escalation.
•Collaborative problem-solving that preserves relationships.
Partnering’s 30-year history demonstrates that lawyers who embrace this paradigm can produce:
•Enhanced and positive client outcomes.
•Reduced or eliminated litigation costs.
•Improved professional satisfaction.
•Stronger business relationships.
•Sustainable ongoing problem resolution.34
Lawyers who integrate Partnering’s collaborative principles position themselves at the forefront of innovation in law practice. This evolution elevates attorneys from traditional legal agents to strategic advisers who actively contribute to their clients’ comprehensive success.
The Revolutionary Power of a Paradigm Shift
A paradigm is a framework of beliefs, values and practices that shapes how individuals, groups and societies think about, interpret and engage with the world.35 In the American practice of law, the adversary system of justice represents a long-standing paradigm.36
Partnering’s powerful, collaborative approach represents a paradigm shift in comparison to a lawyer’s adversary practice. The focus shifts to relationships, mutual understanding and shared goals.37
A paradigm shift occurs when established norms and perspectives are fundamentally altered, creating space for a new paradigm to emerge.38 Partnering represents such a shift in legal thinking, moving from an adversary process to a collaborative, relationship-centered approach.
To understand the transformative power of paradigm shifts, consider two profound examples from history: the Copernican Revolution and the shift from analogue to digital timekeeping.
The Copernican Revolution transformed humanity’s beliefs about humanity’s place in the universe. When Copernicus proposed that the Earth revolves around the sun rather than being the center of the universe, he did more than present a new astronomical theory; he sparked a complete transformation in how humans understood their place in existence.39 This radical shift demonstrates how paradigm shifts may not only change our
understanding but also reshape our entire framework for interpreting reality.
Paradigm shifts can dramatically reshape established industries. In 1967, Swiss watch makers dominated the global watch market with their superior mechanical production capabilities, making up more than 65% of market share. Yet within a decade, as timekeeping transitioned from mechanical to digital devices, the Swiss watch industry’s market share plummeted to below 10%.40 This dramatic decline wasn’t merely about new competition; it was part of a fundamental paradigm shift in timekeeping in human practice and observation.
Shifting the Paradigm for Law Practice
The adversary system of justice represents an acceptance of the existing paradigm of dispute resolution. Its norms and practices are deeply embedded in the U.S. legal community as well as American society. Typically, these standards go unquestioned by both clients and society at large.41
Embracing a new paradigm in Partnering requires effort, but the rewards are rich. Adopting a paradigm shift requires letting go of ingrained beliefs, values and habits. Lawyers who are already experts in dispute resolution may be hesitant to take on a new approach that prioritizes collaboration and shared goals.42 However, this approach allows lawyers to position themselves as indispensable partners in their clients’ growth and success.
As business practices evolve, lawyers who adopt Partnering will be better equipped to meet clients’ changing needs and to
navigate the complexities of contemporary business relationships. Lawyers will also likely find their day-today practice more fulfilling.
Actionable ways for lawyers to incorporate Partnering principles into law practices include:
•Advising clients on the benefits of Partnering. While the legal system remains essential for non-relational disputes, the Partnering process holds great value for parties building contracts, merging businesses or forging other agreements and transactions involving ongoing relationships governed by a legal framework. This offers concrete benefits, including reduced costs and shortened timelines. Essentially, an attorney with Partnering expertise provides clients with tools to manage relationships, avoid unnecessary conflicts and maximize available resources.
•Becoming a Partnering Facilitator. Transactional attorneys and litigators are well-positioned to implement Partnering approaches because of their experience in negotiation, conflict resolution and legal structuring. Practicing attorneys can develop the skills to facilitate Partnering’s collaborative approach and
help existing and new clients realize Partnering’s wide-ranging benefits.
•Recommending Partnering services. Lawyers can assist their clients by placing them in contact with recommended Partnering facilitation services.
Inspiration from Leadership
Hatch, the former Corps Commander, was a critical player in the creation and adoption of Partnering. The Corps’ successes demonstrate Partnering’s power. In 1990, Hatch stated:
“Clearly, the best dispute resolution is dispute prevention. Acting to prevent disputes before they occur is key to building new cooperative relationships. By taking the time at the start of a project to identify common goals, common interests, lines of communication, and a commitment to cooperative problem solving, we encourage the will to resolve disputes and achieve project goals.”43
Lawyers can adopt this mindset with any client or matter involving a relationship between multiple people or entities. In such situations, by setting
clear expectations, aligning interests and promoting open communication from the outset, attorneys will help clients minimize risks and achieve positive, lasting outcomes.
Lawyers share responsibility to practice these behaviors, as the Corps emphasizes in its Partnering Playbook: “[T]his behavior is about recognizing that team and mission success is more important than individual success. This requires each individual to be mindful of their ego, so they can come together as a team with a shared vision to effectively solve problems and develop mutually beneficial solutions .”44
1 U.S. Army Corps of Engineers, Partnering Playbook:BuildingStrongRelationshipsAcross theConstructionProjectDeliveryLifeCycle 5-11 (Engineer Pamphlet 34-1-1. 2024).
2 Id. at 2, 24.
3 Id. at 3, 12-13.
4 Andrew Sobel, TheSixLevelsof Relationships: WhereareYours?, https://andrewsobel.com/ article/the-six-levels-of-relationships-where-areyours/ (last visited Feb 13, 2025).
5 Carrie Menkel-Meadow, The Trouble with the Adversary System in a Post-Modern, MultiCultural World, Multi-Cultural World, 38 Wm. & Mary L. Rev. 5 (1996).
6 Angela Tuffveson,SharpeningSoftSkills, Law Soc'y J. Online, (Apr. 06, 2021 8:00 am AEST), https://lsj.com.au/articles/sharpening-softskills.
7 Anne Strick,InjusticeforAll, 21 (Putnam 1977).
8 Neil Hamilton,EmpiricalResearchonthe CoreCompetenciesNeededtoPracticeLaw: WhatDoClients,NewLawyers,andLegal EmployersTellUs?, Bar Exam'r., Sept. 2014, at 6.
9 Menkel-Meadow,supra note 5.
10 Gerald S. Clay with Maryann G. Sasaki, Mediation:JusticeWithoutGoingtoCourt, Haw. B.J., May 2016, at 4.
11 U.S. Army Corps of Engineers,supra note 1, at 2, 24.
12 Gerald Clay & Tracey Wiltgen, Teamingfor Success:UsingPartneringPrinciplestoSupport CollaborationandCommunicationin Government,Non-Profit,Businessand CommunityGroups, ACResolution Magazine, Summer 2013, at 19.
13 U.S. Army Corps of Engineers, supra note 1, at 16.
14 Id. at 5-13.
15 "Partnering has been used principally in the construction and engineering sectors. See Erik Eriksson, Brian Atkin & TorBjörn Nilsson, Overcoming Barriers to Partnering through Cooperative Procurement Procedures, 16 EVIDENCE-BASED COMPLEMENTARY & ALTERNATIVE MED. 598 (2009)." Thomas J. Stipanowich & Véronique Fraser,2016 FordhamInternationalArbitration&Mediation ConferenceIssue:TheInternationalTaskForce OnMixedModedisputeresolution:Exploring TheInterplayBetweenMediation,Evaluation AndArbitrationInCommercialCases, 40 Fordham Int'l L.J. 839, 867 (2017).
16 Brian Polkinghorn et al.,MarylandSHA ConstructionPartnering:AManagementBest PracticesModel 2 (2006).
17 U.S. Army Corps of Engineers, supra note 1, at 9.
18 Clay,supra note 12, at 18.
19 Id. at 19.
20 Consensus decisions are often achieved by utilizing a Levels of Consensus agreement system through whichall participants indicate that they are at Levels 1-4 below, not level 5.
Level 1: I am enthusiastic.
Level 2: I find the decision is the best choice.
Level 3: I can live with the decision.
Level 4: I will stand aside & not block the Group Decisions.
Level 5: I feel we need to talk more/ I cannot yet agree.
21 U.S. Army Corps of Engineers, supra note 1, at 7.
22 Id. at 7, 25-27.
23 Id. at 1-12.
24 The U.S. Army Corps of Engineers, one of the founding fathers of Partnering, has expressly stated that Partnering principles apply to any group working together to achieve a common goal. See U.S. Army Corps of Engineers,supra note 1, at 1 stating: “Although this Playbook is specific to construction project delivery, the concepts detailed are applicable to any project that relies on people and organizations working together to achieve a common objective.”
25 Polkinghorn,supra note 16, at 3.
26 Id. at 5.
27 Id.
28 Id at 5-7.
29 As previously noted, the U.S. Army Corps of Engineers has expressly stated that Partnering principles apply to any group working to achieve a common objective. See note 24.
30 It is the author’s intent to not identify the
specific industry and legislation noted to honor the privacy of the stakeholder group.
31 Letter from 2013 Haw. St. Bar Ass’n. Chair, on Partnering of the 2013 Haw. St. Bar Ass’n Board of Directors, to Jerry Clay, Partnering Project Facilitator (Dec. 8, 2014) (on file with author).
32 San Francisco Public Works,AMiniGuideto Partnering 4 (June 23, 2016), available at https://www.sfpublicworks.org/sites/default/fil es/Mini%20guide%20to%20partnering%206.2 3.16%20.pdf
33 See Caltrans, 24th Annual Caltrans Excellence in Partnering Awards Ceremony, https://youtu.be/h2WoD7JV9nc?si=1cLiS1_1 ww5L9s_ (Nov. 12, 2024) with the title of the ceremony stated here https://dot.ca.gov/programs/construction/par tnering (last visited Feb. 14, 2025).
34 U.S. Army Corps of Engineers,supra note 1, at 12-13.
35 Joel Arthur Barker,Paradigms:TheBusiness of DiscoveringtheFuture. (HarperBusiness,1993).
36 Menkel-Meadow,supra note 5.
37 Forrest S. Mosten,CollaborativeDivorce Handbook:EffectivelyHelpingDivorcing FamiliesWithoutGoingtoCourt 1 (Jossey Bass, 2009).
38 Alexander Bird,ThomasKuhn, Stan. Encyclopedia of Philosophy (Edward N. Zalta ed., Oct. 31, 2018), https://plato.stanford.edu/entries/thomaskuhn/#ConcPara.
39 Bill Dennison,NicholasCopernicusandthe CopernicanRevolution, Univ. of Md. Ctr. for Env’t Sci. Integration and Application Network (Jan. 14, 2014), https://ian.umces.edu/blog/nicholascopernicus-and-the-copernican-revolution/.
40 Anthony Young,MarketsinTime:TheRise, Fall,andRevivalof SwissWatchmaking, Foundation for Economic Education (Jan. 1, 1999), https://fee.org/articles/markets-in-timethe-rise-fall-and-revival-of-swiss-watchmaking/.
41 Strick,supra note 7, at 21.
42 Barker,supra note 35.
43 Lester Edelman et. al.,Partnering:AToolfor USACE,Engineering,Construction,and Operations v (Frank Carr ed., 2010)(U.S. Army Corps of Engineers IWR Pamphlet 91-ADRP-4, Dec. 1991)
44 U.S. Army Corps of Engineers,supra note 1, at 7.
