Saturday, December 17, 2011

A Bad Day in Mediation is Better Than a Good Day In Litigation! (Part 1)

Occasionally, things happen that remind me I am not perfect.  Today was one of those days.   At the dinner table one night recently, I made some snide comment about some celebrity personality featured in the news.  My daughter gave one of those exasperated replies, “Mom!”  When I looked at her with a questioning look she said, “You’re supposed to be a MEDIATOR!” 
The heart of mediation is to be able to help warring parties see the other side, to instill a bit of communication and compassion.  Obviously, I was not speaking in a way that would facilitate either communication or compassion.   Falling short.
Compassion.  Ah.  The challenge.  The challenge of putting myself into the other person’s experience, to be fully present for them, and to help them communicate and find ways of having their needs understood and met in situations involving conflict.  Fully present means to really listen, to really attend to what someone is saying.  Fully present means to see that party to a conflict as valuable for who they are, to hear and grasp the full meaning of their story and what they are trying to communicate.   For when communication is fully facilitated, most often people begin to understand more what the conflict is really about and then to be able to work together to find ways to meet the most basic needs of each.  Sometimes, it is truly just about numbers or just about compromise.  But most of the time, actually, the parties in my practice actually do engage in what we call “conflict transformation”. 
What is “conflict transformation,” you ask? 
By hearing each other fully, parties are enabled to transform the way they experience and respond to conflict.   When parties to a conflict are able to see and hear each other fully, and even to understand themselves better, they are often able to get beyond the superficial and the posturing, to address much deeper needs.  Often there really is a transformation – an “aha” moment --  that opens the floodgates of understanding, paves the way for change, and makes the idea merely of “compromise” or “settlement” seem trite.  The conflict can then be addressed at a much deeper, and more satisfying, level. 
Yes, the mediator is needed.  People can’t really get beyond it themselves. 
When communication has broken down between parties, when they are mired in their own un-articulated feelings and anxieties and needs. When anger is swirling like a cloud and past hurts invade memories like Trojan horse warriors, the presence of a mediator is essential.  Fully present for each person, I act as a bridge and as a facilitator. 
Yes, sometimes I fall short of that goal, as my daughter reminds me.  But even when it’s not perfect, when I fall short, I still think mediation is better than the alternatives!    
But remember how they say, “a bad day fishing is better than a good day at the office”?  Well, here’s another one:

A bad day in mediation is better than a good day in litigation! 

Have you ever been in litigation? 

To the participants, it’s extremely disempowering.  As soon as the case is turned over to the lawyer, the party loses control.  It’s not the lawyer’s fault, it’s because of the way the system operates.  Now that you are in litigation mode, everything you say could be misconstrued or used against you.  Therefore, all communication must be delegated to the lawyers. The lawyers decide how to use each piece of information to their strategic advantage.  The lawyers research and are governed by “the law,” which is really nothing more than a standard someone set as being fair in another case somewhere else, which may or may not bear close resemblance to your case.  There is no more opportunity for genuine communication, for healing, for working out truly win-win solutions.  The lawyers think in terms of solutions a court could impose, which are relatively limited.   Courts can order money damage and “specific performance” of some tasks, not much more.  Gone is the opportunity for solutions that come from the heart.  Not to mention, all of this lawyering costs money.  For each action of your lawyer, there is an opposite reaction from the other lawyer, and so on.  So costs escalate.  The lawyers love to score points by surprising the other side.  That doesn’t build relationships, either.   And then, there’s the worst part.  You don’t really know in advance what the judge will do.  Somebody will “win,” and somebody will “lose”.  Will it be you?  What will a total stranger decide about your case, based on a bit of information that passed through the gamesmanship called “rules of evidence”?   Could that lack of certainty be the reason people in litigation don’t sleep well at night, for months on end?  And when the gavel does fall, feelings are not resolved.  Instead, all that has happened is that the lid has been nailed down on the coffin of the conflict.  Feelings and needs have not been communicated.  Underlying needs and concerns have not been addressed.  But there is “resolution”.  People are not killing each other.  It’s better than nothing.  But still, I say …


sarah sunrise This winter sunrise photo was taken by my daughter.  The symbolism, for me, is that even on a bleak, cold, winter day, there is still beauty in a new sunrise, in a new opportunity, and a new beginning.

1 comment:

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