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Beyond “Being Difficult”!

PGP Mediation Blog by Phyllis G. Pollack

Recently I read an article about two lawyers assaulting each other during a deposition being conducted in the courthouse. The article, dated April 30, 2015 and printed in explains:

Two attorneys were arrested and charged with simple assault on Wednesday after they got into a heated dispute that turned into a fist fight at the Bergen County Courthouse in Hackensack, authorities and witnesses said.

Costantino Fragale, 42, and Jeffrey Mandel, 43, were in a deposition in a room on the fourth floor about 1 p.m. when the dispute erupted, said Anthony Cureton, spokesman for the Bergen County Sheriff’s Department, which is in charge of security at the courthouse.

“There were verbal arguments, and there was a fight,” Cureton said. He said he did not know what caused the dispute.

Witnesses said they heard a commotion in a jury-deliberation room that doubles as an attorney conference room, and later saw one of the attorneys had a bloodied face. More than a dozen sheriff’s officers showed up at the scene and broke up the fight, they said.

Fragale and Mandel were later released without bail.

Mandel, based in Newark, later said in a phone interview that the dispute was “just an altercation, that simple.”

He said it was Fragale who was bloodied and that he sustained no injuries in the fight.

“I had a smudge mark on the top of my head and my glasses came off but that was it,” he said.

Asked what the dispute was about and how the fight started, he said, “The other attorney will have to answer those questions. I understand that I am not going to be responsible for this, but we will see.”

Fragale did not immediately return a phone call Wednesday

In a blog post posted on April 29, 2015, Katie Shonk with the Program on Negotiation at Harvard Law School discussed “Dealing with Difficult People? First Look in the Mirror.”

Her thesis is that when dealing with “…those who refuse to give you what you want in negotiation for no clear reason other than sheer stubbornness” (Id.), do not dismiss them as simply being stubborn, irrational, and difficult. Rather, stop and ask questions to understand or ascertain what is behind their supposed “sheer stubbornness”. Listen to their concerns very closely and with an open mind. Ms. Shonk offers three guidelines to help view this supposed sheer stubborn person in a constructive light:

The first, is as stated: LISTEN! Ask the other party what is giving her pause. Rather than assuming the reason or rationale for the “sheer stubbornness’, ask and seek out the “new information”. As Ms. Shonk aptly states: “To avoid dealing with difficult people, don’t give them a reason to be difficult in the first place.” (Id.)

The second point and one that should have definitely been followed by the dueling attorneys in New Jersey is to RESIST THE URGE TO THREATEN. Don’t threaten or resort to destructive behavior. Making threats and “promises” of “punishment” in the hopes of getting your way simply does not work, never has worked and never will work! If anything- threats create the opposite reaction of putting the other person more on the defensive and (as the news article inferentially shows) upping the ante; “I will see you one and raise you one!” Rather the tactic should be to attempt “an open and honest conversation” in which you seek to bridge, rather than create or widen, the differences between you and the other party. Constructive, not destructive, conversation is the key. (Id.)

The last point, which definitely was not followed by the assaulting attorneys, is DON’T GO ON A POWER TRIP! Often there will be a power imbalance or at least a perceived power imbalance between the parties. If you are the more powerful party or are perceived as such, do not laud it over the other party. Rather, take the time to understand the situation from the less powerful party’s viewpoint. (Id.) Be sensitive to the other party’s side of the dispute rather than simply riding roughshod over the other party because you can. The notion that you are going to do it simply because you can never goes over well and if anything creates resentment and animosity in the other person, which as we see may lead to physical blows! In short, it will always backfire!

Clearly the attorneys in the news article are neither students of negotiation nor of conflict resolution. Because this occurred during a deposition, I assume the fight broke out as a result of either an answer ( or non-answer!) or objection to a question. The lawyers attempted to resolve their dispute the old fashioned way – by fisticuffs, which only made things worse.

I suspect that their case is an ongoing one, and this incident will now make it difficult, if not impossible, for them to communicate with each other much less attempt to settle. So much for building rapport, a relationship and trust which are essential to settling disputes.

Does anyone want to guess how the case the lawyers were fighting about will turn out? I welcome your thoughts.

… Just something to think about.


Phyllis Pollack

Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as… MORE >

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