Resolve It Now!

I agree with Joel Veldkamp’s blog comment on our lawsuit culture.

Here in modern America, the most prosperous, most luxurious, most physically secure, most individualistic society on earth, it has become commonplace to sue one another over minor slights and injuries – spilled coffee, trampoline accidents, defective grocery bags.

The statistics he quotes later are unfortunately a true result of our societies approach to conflict. We all want our own way, which is probably not new to people at any time in history. Our method of dealing with conflict is to attach others. Worse yet we attack others using lawyers as hired guns and bog down our court system. The net result is that we all collectively pay the piper to support our litigious society. There is another way. People in primitive past cultures talked with one another. Yes, they experienced some discomfort talking about the things that pushed their emotional buttons but then they were heard and found a safe way to discuss their disputes. Today it may take a more formal setting of mediation to give people the safe way to discuss and resolve their disputes.

I vote for peaceful confrontation of disputes, which clears the air, and resolve the underlying dispute. Lee

Not So Much

Many lawyers have personalities that do not allow them to be the best mediators. Trail lawyers in particular have large egos with a great deal of themselves invested in winning in court or pre-trail negotiations. Their education supports lawyers being advocates in an adversarial legal process. Law school develops the ability to patiently research and analyze complex situations in a legal context. However, lawyers usually develop the ability to negotiate well only after law school.

The development of skillful negotiation is necessary for a mediator who has to negotiate well enough to step back and help others negotiate. Just like other skills, it is easier to use the skill or negotiate yourself, than it is to help someone else negotiate. Even if I see the solution, as a mediator I must resist that temptation to insert my solution. My role is to help others do the hard work of finding potential solutions, evaluating them and deciding among potential solutions those that are satisfactory to both parties.

I believe words are powerful and deserve proper respect. So let’s look at the definition of Mediation.

Mediation

Mediation is a non-adversarial process where a neutral mediator gains the support of the party’s, creates a safe environment and helps them negotiate and reach an amicable agreement or amicably end a relationship. That seems simple enough but it is amazingly difficult to accomplish.

Let’s figure, since this is often true, that the people or business party’s have already reach an impasse of some sort and cannot make progress. Often the frustration of their relationship, the dispute or their inability to resolve the dispute increases the animosity between them. Anytime they get together, the environment is anything but safe for one or both of the party’s.

The mediator may be, and certainly tries to be neutral, but convincing party’s that do not trust one another enough to solve their dispute is another thing. Creating trust is a key indicator of the likely hood that the mediator will be successful helping the parties. As you might imagine, building trust is just as much art, as science. The mediator needs to develop any natural chemistry with each party into a relationship before the mediator can make progress. The mediator’s ability to help them resolve the dispute is the most important element in developing the necessary trust. This becomes somewhat of a chicken and egg situation. If the trust is there, the mediator can help. If the mediator can help, the trust will build.

Mediators have unique skills

The skills of a good mediator are for the most part different from the skills of a good lawyer. The largest gap is between a mediator and trail lawyers. Therefore, the lawyer most often involved in a legal dispute is generally the least capable of helping the party’s negotiate a resolution. After all, when you anticipate suing someone or defending yourself from a lawsuit the trail lawyer is obviously able to give best support. However, if you want to reach a peaceful end a mediator has a much higher likelihood of success.

I have been observing a simple divorce for about 2 years now. Susan and her ex husband Joe have been divorced for about a year but continue to sue each other over control of their daughter even though both say they don’t want to fight.

During the divorce it became obvious to them that they could not communicate or agree on anything. It is sad to watch them spend tens of thousands of dollars on their lawyers instead of their daughter. Neither of them can really afford the cost of continuing a court battle.

Can they solve their issues and end the fight?

Yes there is light at the end of the tunnel.

There are three major problems preventing Susan and Joe from burying the hatchet somewhere other than in their ex’s skull. The problems are:

1. Lawyers trained as adversaries,
2. Poor communications between Susan and Joe driving vengence
   
3. Inertia of the fight.

It is hard to turn the other cheek once a fight starts and you feel offended. It’s a human thing.

The lawyers

Susan and Joe each have a lawyer ready, willing and able to fight the other lawyer as long as their client pays. Initially Susan’s lawyer wanted her to maintain a specific positive balance in contingency fees on deposit with him. Susan soon could not keep up the payments as fast as the expenses grew. She is paid $25 an hour which couldn’t keep up with her lawyers $300 an hour expense rate. Every day her attorney was in court it cost her $2,400. She works half the month to make that much before taxes. Her lawyer has been willing to postpone actual payment in exchange for significant installments ($1,000 a month) as long as the fight continues. This is a practical solution that allows him to continue logging income and her to continue fighting by having her lawyer file court pleadings and appeals.

Susan and Joe will need to actively manage their lawyers or this problem will continue.

Vengeance

The second but primary enemy of a collaborative divorce is vengeful actions. Susan and Joe still each want to hurt each other, badly enough that they are willing to inflict pain on themselves, as long as that pain extends to the other. They could not communicate well or agree on anything before they divorced. Now that they are divorced they continue to fight over control of their daughter Mackenzie.

They bring up hateful accusations from the past as though they occurred today. Neither Susan nor Joe realizes words are powerful. Words can hurt as much or more than sticks and stones. The pain from words continues long after the words are spoken.

They will both need respect the power of words and use words as the powerful tool to stop fighting.

Inertia of the fight

Some lack of collaboration is probably societal since people tend to think they can hire a lawyer to get their way or to get even. It is easy to forget the more important things in life like the child and a peaceful life that they might enjoy if they were not fighting each other. The other issue is the human tendency to justify our actions. Each time one or the other does something mean it provokes a retaliation to get even and then some. After a short while neither one can resist the next attack.

They really do need outside help to get their issues resolved so that they can have peace back in their lives again. Even a skilled mediator would have a tough time forcing a collaborative process so they solve their issues rather than fight over them.