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Brave New Law: Wicked Problems and The Great Resignation

10 May 2022

The Wicked Problem can be summarised as a complex issue that doesn’t have one solution. The great resignation is an example of such a problem. How can legal teams practically manage for issues like this?

The Wicked Problem was first defined in 1973 by Horst W.J. Rittel and Melvin M. Webber, professors of design and urban planning at the University of California at Berkeley as a problem that:

  • Has innumerable causes;
  • Is tough to describe;
  • Does not have a right answer.

Wicked problems are complex and multi-faceted which might sound like a normal day at the office (or home office) to many senior in-house lawyers!

Like crises, wicked problems seem to have multiplied as our world has become more global and fast paced. What wicked problems require to be solved are different points of view and multifarious ways of considering them.

Having the right talent is crucial to meeting these challenges, we need multiple insights, diversity of experience and thinking, creativity and the ability to strategise and operationalise. However, being able to develop talent in the right way to meet the needs of the 21st century is a wicked problem for organisations and their legal departments today.

Legal department talent development: A Wicked Problem?

Talent retention and development is a challenge facing all legal departments in different degrees, no matter how advanced or how agile they may outwardly seem to be. As in Diversity & Inclusion – to which talent is an intertwined issue – there is often a gap between rhetoric and reality; between the view a legal team and its GC may present to the outside world, particularly the media and the lived experience of many who work in that team. This is all being exacerbated right now by a war on talent spurred by ‘the Great Resignation'.

What are the factors that make talent development such a wicked problem for many legal teams?

  1. A flat structure
  2. Lack of defined career progression
  3. Opaque advancement opportunities
  4. Variable quality of development programmes
  5. Performance evaluation and feedback processes that are not fit for purpose
  6. Leaders particularly in the mid-level who have not received any training or inadequate training in people management.
  7. Too much focus on technical legal skills and not on human centred skill needed to manage and develop talent.
  8. A lack of focus on the individual

Many of these points have their roots in legal training and are manifest in law firms to the same or an even greater degree.

However, the hierarchical structure of a law firm and the clearly delineated goal of equity partnership (whether that is even remotely achievable for everyone) does much to mask many inadequacies with people and talent strategies.

Reframing work: Reframing legal work

Does this go much further and much deeper than just needing to train middle managers in legal departments on performance evaluation? Does it cut to the very heart that what we need to really succeed is to love what we do? In the most recent issue of Harvard Business Review, June 2022, Marcus Buckingham of ADP Research Institute (ADPRI) shows that in their recent survey of over 50,000 employees the key factors that organisations need to get right are:

  • Was I excited to work every day last week?
  • Did I have a chance to use my strengths every day?
  • At work do I get a chance to do what I’m good at and something I love?

Legal departments may have an advantage in these areas. Many lawyers I have spoken to over the years are often inspired to become lawyers because of a fundamental passion for the law, what it stands for and it's purpose: justice, helping others, fighting for what is right. There are, of course, many who enter the profession for other reasons including pay and status, but a heartening number have pursued their career path because of a passion for what being a lawyer fundamentally is.

Beyond a reactive mindset

So that might at least answer getting to do what I’m good at and something I love. But how can legal departments ensure that their lawyers are truly using their strengths and feeling excited to come to work?

A common challenge for many in-house teams is feeling over-worked and overwhelmed. This leads to legal teams being purely reactive and viewing themselves as a service facility for the business. What is needed is a mindset change in the purpose and culture of the legal team, and often a reset in how talent strategies are configured. One General Counsel I know speaks about moving from being a protector to being an enabler and creating a ‘test and learn environment’ where setbacks and mistakes are accepted as part of the process.

Ideas to trial:

  • Listening, understanding empathising and conversing is fundamental on a departmental and individual basis. A first step in any wicked problem is understanding it and seeing it from a range of different stakeholders’ viewpoints. The view for a senior in-house lawyer navigating their trajectory to GC is different to a junior lawyer even though each might ultimately one day want to the top legal job!
  • Reframing work and the legal team culture – putting enjoyment and inspiration at the heart. I have worked with legal teams where a significant aspect in resetting the team’s culture regarding its people is changing their mindset as to what being a lawyer in X organisation means. That’s linked strongly to how the GC and the legal leadership listens and communicates but also ties into how the purpose and the culture of the team is framed. This framing of the purpose and culture must be consistent and cascade down to the most mundane aspects of each lawyers’ work.

In some recent work I did on legal department leaders, similarly busy leaders had different views of their work depending on how their role was framed and the ability for development, growth, and creativity in the role despite the heavy workload. Without these framing it, the heavy workload just felt heavy and grinding.

  • Trying new incremental solutions. Prototyping assessing and responding quickly. If something is working, how can you advance it? If it’s not working, stop and what next? That’s at the heart of how strategists have dealt with all types of wicked problems. Is that agile approach something we need to adopt more with talent, and could it work well with the next point of personalisation?
  • Personalise the experience. One of the reasons cited in the great resignation for leaving, is that organisations do not have the individual’s best interests at heart. It might be this that needs to be the biggest change in how legal departments and all employers’ approach ensuring they retain and develop the talent they need: it’s not a one size fits all solution. At athletic wear company, Lululemon, each employee’s career starts with them mapping out their career journey and then discussing how they can get there even if that might lead, ultimately, to moving outside of the company. Succession planning is part of this: at The Gap one of the first questions the new GC will think about is who is in their succession plan.

These are not ‘soft’ skills anymore. We are increasingly seeing a convergence with ideas that were traditionally on the human side of business and deemed ‘fluffy’. But these concerns are now at the cutting edge of what it will mean to be a successful and profitable company in the 21st century. If we look at trends in corporate governance, human capital issues are at the forefront along with environmental concerns. Keeping people motivated and happy at their jobs is not just a ‘nice to have’, it is fundamental.

Authors: Dr Catherine McGregor and Kirsty Rogers

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