You cannot shake hands if you keep
your fist clenched
"The greatest
single antidote to violence is conversation,
speaking about our fears, listening to others, and
in that sharing of vulnerabilities discovering a
genesis of hope..."
Extracted from
"The Dignity of Difference" by Jonathan Sacks
In the heat of a
disagreement, violence appears to be a satisfying, albeit
antisocial, mode of dealing with the conflict.
We live
in a society that has evolved from "I want..."
to "I want it now...". Violence gives both a
solution that allows us to keep direct control over the
outcome as well as instant gratification through the
purging and release of anxiety and fears by experiencing
the immediate physical and emotional relief that comes
from the violent act itself.
Litigation provides a
socially sanctioned extension of this principle where
the infliction of discomfort and inconvenience caused by
the litigation process culminating in the anticipated
thrill of victory at trial serves to give the victor the
exhilaration and thrill of proving they are
"right".
As
most experienced trial lawyers will tell you, very few
civil court trials end in a "clean - kill"
victory for either side - the financial and emotional
costs are immense and the costs of societal breakdown
through the vanishing of the feeling of co dependence
between the people themselves incalculable.
There have been
mediators and arbitrators since the first societies were
formed. Whether they are clan leaders, tribal chiefs,
wise shamans or respected members of a given society,
the wisdom and respect they hold comes from their
ability to mend rifts between peoples and societies and
not in their ability to make decisions conceived in
isolation from the day to day realities and needs of
living within the community.
They resolve disputes by
mending the breakdown of cooperation at its source
rather than applying make-up to cover the cancerous
growth beneath. Solutions can be received from a Justice
or an Arbitrator, but unless the elements of that
solution meet each party's needs and grow from the
thoughts and feelings within their hearts and minds, a
lasting and satisfying solution will not have been
found.
Litigation entices us
to focus on the ideas and concepts that support our publicly
declared beliefs or positions and to screen out the
thoughts and ideas that question what we want to hear.
Trial counsel is, in most cases, retained by the client
for his or her ability to be a cross between a barracuda
and a pit bull. Very few clients pay their lawyer to
remind them on an ongoing basis of the strengths of the
other side's case or weaknesses in their own case .
It
is understandable that litigants would want to retain a
lawyer whom they feel is 100% in agreement with them and
will fire a lawyer who expresses doubt about the
strength of their own case. The bottom line is that when
you are in a brawl, you need to know that those who
purport to be "on your side" will fight with
you until the very end. In exchange for that
reassurance, each litigant sacrifices two basic needs
within each and every human being - control of matters
in one's life and the need to be accepted as part of the
society within which he or she interacts.
The phrase "talk
to my lawyer" is the mantra of clients because
control is power and lawyers are prized and paid for
their ability, sometimes more perceived than real, to
control, wield and manipulate the elements of power on
behalf of their clients. Lawyers also provide the client
with the reassurance that their case is strong - after
all their expert (the lawyer) told them it was so.
What
makes someone an expert? According to Harry Beckwith in
his book What Clients Love the answer to that
question is volumes of data and experience. But
consider that each law suit has two opposing sides each
with their own lawyers and experts - two sets of data
and two sets of experiences. But how can they both be
right? Whose expert is wrong - theirs or yours? Although
they cannot both be right, they can both be wrong.
The
question is if there is an alternative, how far are you
prepared to give up control of your solution to someone
else (whether it be a Judge, Arbitrator or lawyer) which
is what you may be required to do in order to proceed
with litigation based on an "expert" opinion
(just incase your expert is right) that, based on the
above probabilities, will in all likelihood only be
accurate one out of three times. A 33% percentage
batting average may be acceptable in baseball circles ,
but is it acceptable when it comes to your life? Would
you consent to an operation that failed two out of every
three times it was used in the operating room if you had
options - alternatives before having to risk the
operation? If lawyers were always right and if their
clients' cases are so strong, why do 90% of the lawsuits
filed never reach trial?
" And finally,
don't allow other people*s strong convictions to
sway you, or adopt the point of view of the most
confident advocate. Many people merely use
confidence as a tool of persuasion, and appear
certain because they want to prevail. Still others
are sincere in their convictions - sincere, but dead
wrong"1
Mediation is one
option that can allow you to keep control of the
solution while always being able to consult with your
"expert" and being able to only commit to a
final outcome when you feel that it is right to do so.
In my last article I spoke about litigation and the
costs of engaging the Court process. In my next article
I will talk about mediation - what to expect and how
best to use this opportunity to avoid potentially
terminal outcomes and costly litigation.
Top
1 Extracted
from the advice given by best selling author Harry
Beckwith in his book "What Clients Love - A field
guide to growing your business". In his book the
author*s advice is not to trust what may seem to be
empirical and therefore trustworthy data. Although aimed
at an audience that is seeking assistance in the field
of marketing policy and business development strategies,
I offer the advice as being just as applicable to the
field of dispute resolution.
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