Monday, September 20, 2010

Overcoming Our Combative Instincts

I did some posts this week on my political blog, trying to understand why voters seem so angry this campaign season.  After trotting out some of the usual suspects like our dysfunctional government, and the economy, I turned to the touchier subjects of intolerance, racism and xenophobia.  We certainly have a lot of problems to deal with in our country right now, but my mind keeps returning to the question of why we need to react to those problems with anger and recrimination.  Didn't we, less than two years ago, embrace the promise represented by the Obama campaign, of trying to approach our problems with a spirit of cooperativeness and inclusiveness?   A majority of the country actually elected a candidate who appealed to us to get beyond red states and blue states, and instead remember that we are all part of the United States.  How quickly we returned to partisan warfare.

In the world of private dispute resolution, we also find it hard to overcome our natural warlike instincts. While mediation is expanding into a more accepted and regular part of the litigation process, it has a long way to go to overtake more traditional forms of dispute resolution.  I doubt the demand for mediation services will ever approach the demand for litigators.  (The budget for the Department of Defense is more than ten times the State Department's budget, and that ratio is not likely to change any time soon either.  People say they want peace, but we actually prefer to fight.)  That's one reason I'm not yet ready to give up my trial practice.  While most participants  appreciate the cost savings of a settlement as compared to the enormous wastefulness of litigation, they do not always embrace or perhaps even understand the concept of a mediated resolution of disputes.  Our instinct is to fight and try to win, not to try to empathize with the other side's point of view and reach an accommodation.

People often approach the mediation process itself with a combative mentality.  Trial lawyers might see mediation as another step in the process of litigation that can be "gamed" and "won."  Clients might be reluctant to give up the fight with the other side, and look at the mediation as just another battle in that fight.  So participants in a mediation often try to impress the other side with the strength of their case.  Or they might try to scare the other side with the threat of continued costly litigation.  They might even refuse to speak to the other side.  They might bluster their way through negotiations with unreasonable offers or demands.  All these techniques, by the way, have some legitimate uses in a negotiation, and I have used them all myself, as advocate and as mediator.  But these kinds of aggressive negotiation tactics are not really what mediation is about.  The essence of mediation is listening to the other side with the goal of actually trying to understand their point of view.   That doesn't imply that you have to agree with them, or concede anything to them.  You just have to listen and try to understand where they are coming from.  When people do that, and when--just as importantly--they believe that the other side has heard and understood their own concerns, they often find a way of satisfying at least some of the other side's interests, without giving up any of their own.  How rarely we seem to do that, in politics, in our relationships with others, or even in mediation itself.

(photo from Mesirow Legal Juice)

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