Sunday, October 2, 2011

Switching modes

Imagine if one could flip a switch that would cause all the parties to a conflict to change their approach from an adversarial mode of conflict resolution to a problem-solving, or negotiation mode.  In other words, stop arguing with one another, and start talking and listening to one another. That is one way of thinking about what mediators do, and of course it is never as easy as flipping a switch. On the other hand, it doesn't necessarily even require a mediator to make the transition.  On my political blog, I posted something--inspired by my rabbi's Rosh Hashanah sermon--about the difference between a crisis model and a values model. He was talking about Israel, but the concepts apply to any conflict. The crisis model, which we seem to adopt in times of war or stress, is built on suspicion and distrust, does not tolerate dissent, and seeks to de-legitimize and defeat the other side. By contrast, what my rabbi was calling a values model, and what those in the mediation business generally call an interest-based approach, is built on trying to understand the other side's concerns, encourages communication among people of divergent views by appealing to shared values, and seeks a mutually satisfactory solution.

Why is it, whether we are talking about international political disputes, or business disputes, or even family disputes, that people seem to reach instinctively for the crisis model? Some would say it's because we respond to conflict with the more primitive parts of our brains. Others might say it's rational to react in a hostile manner to those who are manifestly out to get us. It could be our well-developed sense of justice and injustice that causes us to react with outrage whenever we feel wronged. Or we could be victims of our own biases, prejudices, and misunderstandings. I still make most of my living from the conflict model, even though the vast majority of litigated disputes eventually end by negotiated resolution.

It is possible to settle a lawsuit without ever letting go of an adversarial approach. But we are more likely to find peace if we can trade in the crisis model for an approach based on shared values, empathy, and an effort to accommodate divergent interests. Mediators usually encourage the parties to change their approach to conflict, but parties can make the switch with or without the help of a mediator. How do we make that switch?

I remember once in my early days of practice strategizing about our response to an eviction case. We needed to stay that case so we could litigate other claims against the landlord, and immediately started talking about the extensive set of papers we would need to prepare in support of that motion. At some point I suggested simply calling the landlord's attorneys to see if they would agree to a stay, and everyone else thought that was a crazy idea. With nothing to lose, however, we decided to try it, and to our surprise they agreed. Since then, my first impulse in encountering any problem in a case, is generally to call the other side to see if we can resolve it, something that the rules now usually require counsel to do (a requirement often honored in the breach). But if we make a genuine effort to resolve an issue that would otherwise require a motion, we will find workable negotiated solutions more often than we think.

I have often had to prepare cases for trial, while simultaneously attempting to settle them. The first time I remember being in that situation, I was in the office late in the evening drafting witness outlines for an arbitration hearing, while waiting for a call back from opposing counsel to find out if they would accept our last offer. While in the middle of that settlement discussion, knowing that the case was probably going to settle (it did), I not only lost some of my motivation to continue doing the preparation work, I also noticed that the outlines I was working on started to look rather pointless and absurd. (Parties to a lawsuit should consider having a settlement team different from their trial team, to keep the trial lawyers focused. Even then, however, trial lawyers just have to live with the reality that their work may come to an end at any moment.)

I remember a deposition I took of a witness associated with a production company in the entertainment industry. The witness, who was not a party to the case, seemed amused by all the squabbling between opposing counsel and myself. During a break, when we managed to have a more civil conversation, the witness asked both counsel for the warring parties how we could stand all the negative energy we were creating. This question, coming from someone whose business depends on fostering creativity and positive energy, made me realize how heedless litigators can be of the poisonous atmosphere we often purposefully foster, and how such an atmosphere can impede resolution of the dispute.

In each situation, what enabled me to make the switch was examining whether what I was doing was wasteful and/or counter-productive to the goal of resolving the dispute. Sometimes you have no alternative but to keep fighting, but many times all you find that you are doing is banging your head against a wall without making much of an impression on the other side. That is the time to consider communicating instead of more banging. Even in a dispute that appears to be a zero-sum game, parties often find that they have shared interests. At the very least, they have a shared interest in resolving the dispute. They may also have a shared aversion to the costs and risks of litigation. They probably both dislike the atmosphere of hostility and distrust engendered by the the crisis model, but they think it's all the other side's fault. If they can put aside the crisis model, and switch to  a values-driven approach, they might find they have even more shared interests or values in common.

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