From the Blog of Phyllis G. Pollack.
I finally had the opportunity to read the book my colleague Victoria Pynchon, J. D., LL.M, recently published, A is for Asshole – The Grownups’ ABCs of Conflict Resolution (Reason Press 2010) and discovered that I should have read it much sooner as it is delightful!
The chapter that struck me the most is entitled “L is For Lawyer”. In it, Ms. Pynchon recites the story of being asked to mediate a probate dispute even though she knows absolutely nothing about probate law. It took some moments for Ms. Pynchon to understand that the family members caught up in the will contest were not concerned with their “legal” rights; they wanted to find a resolution that was “right” for them. They were not concerned about the “relevant” facts but about the “irrelevant” ones – the emotional, financial and other non-legal issues that had to be considered in order to repair and heal the family relationships.
As Ms. Pynchon points out:
“ “Irrelevant” facts and principles sometimes run contrary to the law, and are often more personally compelling. These irrelevancies often lie at the heart of a client’s insistence to pursue litigation; of his decision that it is not worth further expense or of his hesitancy to accept an offer rather than go to trial. These emotional responses and value choices are often the key that unlocks the door of resolution, not a barrier to the dispute’s conclusion.” (Id. at p. 80).
These words rang so true with me because I had recently conducted a mediation in which one party was concerned solely with the “relevant” facts (that is, the law) while the other party was concerned with the “irrelevant” facts, (that is, the psychological impact of what she was being asked to do). It involved a deed of trust worth several millions of dollars. On a motion for summary judgment, the trial court ruled that the trust deed did not cover the real property in question. Thus, the deed of trust was worth zero dollars! The deed of trust holder appealed and even though she knew that there was a strong likelihood that the appellate court would affirm the ruling of the trial court, she simply could not walk away from several millions of dollars; she had to be paid something! The psychological impact (that is, the “irrelevant “facts) was too great.
On the other side, the property owner who had won the summary judgment motion insisted on using only “relevant” facts (that is, the law) in the mediation. Although she knew there was a small likelihood that the appellate would reverse and remand the matter back to the trial court for more motions and a trial (and thus more expense), she refused to address the emotional, psychological and most importantly, the financial impact to the deed of trust holder of losing several millions of dollars. The property owner absolutely refused to pay one penny to the deed of trust holder, adamantly standing on her “relevant” facts and completely discounting the time and expense that she will incur should the appellate court reverse the trial court’s grant of summary judgment so that the matter ends up in the trial court once again. She insisted that the trust deed holder simply “walk away” from everything.
So, as you can guess, the matter did not settle. Although the “irrelevant” facts ran contrary to the law (according to the judge who decided the summary judgment motion in favor of the property owner), they are more important to the trust deed holder than the “relevant” facts Similarly, the “relevant” facts were the only thing important to the property owner. Try as I might, I was unable to nudge one or the other onto the playing field of the other party.
What is going to happen? These parties will probably spend a lot of time and money going round and round on this . . . and in the end. . . neither will be happy; their “day in court” will be a letdown and may be missing some “justice”. What is legally “right” is not always “fair” and what is “fair” is not always legally “right.”
It is so true that often times, the “irrelevant” facts – are more important than the “relevant” facts. While the “legal” issues are important, it is the psychological, emotional, financial and personal issues that often control a dispute. If these can be resolved, more times than not, the dispute can be resolved.
. . . Just something to think about!
PGP Mediation Blog by Phyllis G. PollackOn June 22, 2017, the California Law Revision Commission issued its Tentative Recommendation following its study to create an exception to mediation confidentiality (Study K-402). If...By Phyllis Pollack