Performance problems are difficult. Dealing with underperforming partners, associates who are not meeting the firm's standards, or people who are "culturally challenged" is awkward, embarrassing, unprofessional and messy. It is often easier to look the other way and ignore the problem with the hope that it will somehow go away - the law firm equivalent to what politicians call "kicking the can down the road."  

Unfortunately, the consequences of can kicking are precisely what one would suspect. A leader's fear of an ugly confrontation can result in years of turmoil and problems; as the German saying goes "a situation that ends horribly is better than one that is endlessly horrible." The issue seems not to be getting leaders to decide what must be done - they typically know that instinctively. Instead leaders seem to have a tough time "pulling the pin" - getting past the ugliness of the action itself. Oddly, leaders sometimes find themselves somewhat hoping for a crisis - a burning platform to force their own action.

There is no way to make difficult personnel actions easy. But there are some techniques that may help leaders sleep better the day before, and the day after, they take action.

1. Build the case. It is important for a leader to be personally convinced that the action being contemplated is appropriate and necessary. This is the simple process of creating a one-page narrative describing the problem, the difficulties or financial implications of the problem, and previous attempts at resolution. THIS DOES NOT HAVE TO BE PROOF POSITIVE FOR A COURT OF LAW. It is just a summary of the information at hand on which the action is being justified.
2. Plan the action. If the intended action is termination, lay out a detailed list of the severance benefits. Include face-saving features such as the continued ability to have email and telephone messages forwarded to them (after screening). Err on the side of generosity - it will relieve a lot of guilt, and avoid ongoing negotiations.
3. Rehearse the conversation. Create a list of the things you would say were you the person involved, and prepare responses (remembering that sometimes an appropriate response is to say nothing). Get together with another partner and practice the conversation with the person you are working with being as truculent as possible.
4. Create leverage. If the partnership agreement limits your authority in the situation, have some form of leverage to encourage the individual involved to not seek further appeal. For example, in terminating a partner who can demand a partnership vote, offer the severance package only if the individual resigns the partnership. If the issue goes to a partnership vote and the partners vote for dismissal, it is doubtful they will offer as generous a severance package.

Finally, remember that you are not the person who created the problem. If anything, you are the victim because you have to clean up the mess. Don't make the process more painful than it need be.

It seems that the issue and management of underperformers have altered in recent years. A few years ago, most well-managed firms identified the clear misfits, shirkers and serial underperformers in their firms and managed them out. What has happened in many cases since then has been that firms have had to face one or more of five issues:

First, as competitive pressures increased, firms had to restructure their partnerships in order to remain competitive and - where they recognised that the firm had become over-partnered
- slimming down the partnership became necessary.

The second issue has often been that in some firms there are no obvious individual incidents of underperformance, but performance across teams and firms has become lacklustre; in these firms and teams, there are very few star partners, and the remaining partners as a group are all performing poorly or below law-firm industry benchmarks.

Third, firms have found that the removal of the bottom 10% of partners gradually placed a number of the next tier of partners into the bottom performing tier of remaining partners in their firms on a relative basis.

Fourth, a number of firms have reported to us that some partners have found it difficult to change gear at the same speed as their firms have developed into higher tiers of work and acquired more sophisticated clients.

Finally, the recession has led to a number of areas of law becoming either temporarily or permanently contracted, or out of favour.

In all five of these scenarios, affected partners can often count themselves unfortunate to be under performance scrutiny. One managing partner told us on a non-attributable basis that there have been times "when we recognised that there was a simple business need to remove senior cost from the firm and therefore the agonising decision was made to remove a number of partners. It was then a question of setting criteria to decide which partners were to go and applying them. The partners who had to leave were, in a sense, faultless and were in the wrong place at the wrong time."

In the light of these five main issues, some firms are now approaching their options much more sensitively than before, whilst other firms - having cut the first tranche of obvious underperformers - are now taking a harder performance line with the remaining partners. As an example, 40% of respondents to the Edge International 2011 Survey made it clear that they regularly consider de-equitising or redeploying partners.

My recent Ark report, Tackling Partner Underperformance in Law Firms, highlighted seven options for dealing with underperformers in addition to expulsion.

1. Reinvigorating moderate performers. Many firms take the view that personal career planning for partners can, with the firm's support, help moderate partners to re-focus their levels of ambition and to improve their contribution.
2. Incremental performance improvement across teams and offices. Some firms have teams in which there are no underperforming partners as such, but where there are too few stars driving the team forward and too many partners who are working with comfort zones. In such firms, the important first step is to agree and communicate expected standards of performance and a route map to achieve some minimum-performance benchmarks.
3. Addressing weak performance areas by partner development, training and re-training. This is particularly suitable for partners who are strong in some of the critical areas of performance and below average in others, as it is often possible to address particular areas of weakness.
4. Rehabilitation of temporary strugglers who have experienced a temporary 'blip' in performance.
5. De-equitising partners. De-equitisation can be particularly useful for partners in their final years who are starting to feel the strain of increased performance management pressures and might want to avoid the risk of a partner cull.
6. Facilitating partner moves. One firm told us, "We have sometimes talked to other firms that we know who are downstream of us and who could do with an improved skill set. This has enabled us to make an introduction of a partner to another firm where they might prove to be happier".
7. Voluntary and negotiated departures. It is noteworthy that in the Edge International 2011 Survey, half of the departures of underperforming partners occurred after negotiations.
8. Expulsion. Formal expulsion from the firm is the 'nuclear option' and seems to be rarely exercised. The Edge International 2011 Survey showed that in only 5% of cases was it necessary to obtain a formal resolution of the partnership.