MY FIRST “REALLY BIG IMPORTANT TRIAL:
I can remember it so very well–my first really big important trial as a young lawyer. It all started with a personal summons from my big downtown firm’s senior litigation partner. The meeting was brief: I was to relocate from the document discovery room (my only assignment since joining the firm) to an office adjacent to the senior partner’s office. He was a former ABA President; a former Michigan Bar President; and a courtroom gladiator without peer.
Since then, I have often asked myself the question, Did this case need to be tried?¨ The answer has always been “Yes.”¨ No settlement, short of complete capitulation by one side to other, was within anyone’s contemplation. At the time, both sides were completely convinced of being right and that a judicial decision was the only way to resolve the conflict. As the case progressed, the parties’ star-caliber lawyers erected towering arguments of granite-like logic. Rather than create doubt in the parties’ hearts and minds, these arguments only further convinced them of the impenetrability of their respective positions and the righteousness of their causes. Business needs and interests became obscured in the smoke of battle and the deafening battle cry “We Are Right!” When the smoke had cleared and the tumult quieted, both sides had won and lost in the same case and neither felt fully victorious.
OUR TRADITION: THE ADVERSARIAL SYSTEM OF DISPUTE RESOLUTION
The case always starts like this: The client comes to the lawyer¡¦s office and tells his/her story in layperson¡¦s language. The individual believes that she/he has no other place to go and no other way to raise the problem but to see the lawyer that is the system that everyone knows and uses. The lawyer listens and then translates the client’s problem into the language of the law. The client nods his/her head but in truth has little understanding of the transformation that his/her personal problem has undergone–it is now a legal claim or defense.
From the lawyer’s traditional point of view, the way to help the client is to find the place in the law where the particular problem fits. Hence, the client’s personal story must be retold as a breach of contract, tortuous interference, anti-trust or whatever the lawyer feels gives the client the best chance of prevailing. As the case begins, the lawyer consults the court rules and conducts the legal case as if it were going to trial. After all, that is the traditional way to resolve client conflicts. As the process unfolds, the client becomes more and more removed from direct participation and decision-making responsibility in the dispute resolution process. As the client recedes into the background, the legal problem and the lawyers move to the forefront and the case takes on a life of its own. In actuality, the process could almost take place without the client (the most candid counsel openly admit that they often wish it could!)
Our adversarial system is a socially sanctioned form of combat conducted according to a professionally crafted set of rules interpreted and enforced by neutral third parties–judges and juries–in whom we have vested the power to make controlling decisions about the combatants.
In this process, each combatant has an equal opportunity to discover the other’s case and to assess the other’s strengths and weaknesses. Who is right and who is wrong it is to be so conspicuously revealed through discovery that settlement occurs by capitulation of one side to the other or by a judge’s or jury’s decision. Alternatively, settlement is reached by compromise because discovery reveals that neither party’s position is so overwhelmingly superior to the other. In either situation, the case proceeds as if it will go to trial. Around this system, we have built an elaborate edifice of rules, administrative procedures, courts, clerks, forms and filing fees. All cases that are filed in court proceed according to this system. This is the way conflict resolution has been traditionally taught and practiced by professionals and how society has come to accept that the problems of its members will be adjusted.
Yet, only a tiny group of about 3% of all filed cases actually go to trial. Of the remaining 97%, a few are resolved by dispositive motions but most are resolved by settlement. So, it seems that the traditional adversarial method for resolving disputes is designed, taught and practiced in anticipation of a chimera¡Xthe trial that will never happen. Given the statistical evidence, however, the actual practice is that counsel and parties are positioning themselves for the inevitable settlement of the case with trial being the alternative. Seen in this light, one might even say that trial is alternative dispute resolution.
THE EVOLUTION OF CONFLICT RESOLUTION
For the past decade, a social, political and practical evolution has taken place away from an adversarial system of conflict resolution and towards one based upon consensus, collaboration and mutual interests. This shift has developed systematically, and ironically, almost unnoticed by many of those whom it effects the most. The reasons for this change are many. A few of the more compelling reasons arise from and are evidenced by social needs, business interests and the legal establishment itself:
In school systems throughout the U.S., conflict education is being taught–a curriculum unknown to prior generations. Leading educators predict that, in a few years, graduating high school students will be as familiar with conflict resolution techniques as those who are paying good money to attend professional mediation training courses mandated by state or federal Court Rules to qualify as court roster mediators. For the first time, therefore, our society is requiring its citizens to learn conflict resolution skills so that they can become their own personal conflict managers.
Respected business leaders increasingly emphasize the importance of managing conflict in the workplace through nonadversarial methods. Finding and training qualified employees in the technical aspects of their duties is no longer enough. Employees must be equally qualified to get along with each other, work out their differences and solve interpersonal, workplace, leadership and business execution problems. A number of recent studies show that as we move into the 21st Century, some 80% of new workers entering the job market will be minorities, women, ethnics and immigrants. This dramatic change in our workforce creates an even greater incentive for business to change its traditional approach to conflict resolution.
Entire industries have incorporated ADR processes into the ways they routinely conduct business. The entire securities industry now employs mediation and arbitration as the exclusive way to resolve both inter-company and customer disputes. The construction industry now uses mediation and arbitration in all AIA contracts and construction projects. The Ecommerce industry uses ADR as the preferred way to resolve software (e.g. “shrink-wrap”) licensing disputes. The insurance industry employs ADR to resole inter-insurance and reinsurance conflicts among carriers. Mediation is developing into a key method to both form and maintain “strategic business alliances”. In the field of international business transactions conducted among nations with often drastically different cultural perspectives, ADR is the only real conflict resolution technique that makes sense.
Parties, lawyers, judges and the public in general are demanding a different means to resolve conflict. Parties are insisting upon greater involvement in the decision-making process and the ultimate outcome of their legal problems. Lawyers are discontented with the undue adversarialism and absence of collegiality in their practices, with increasingly superficial relationships with clients and ultimately with their career choice. Judges, who sought their positions with the lofty goal of dispensing justice, often feel more like a moving part in unwieldy administration contraption. The public is demanding dispute resolution processes that involve less contentiousness, less expense, more certainty and speedier results.
The significance of these wide-ranging and varied developments cannot be underestimated. They are moving us along a path of inexorable change towards a different model of conflict resolution.
THE DISCOVERY OF A NEW MODEL FOR CONFLICT RESOLUTION
Before Edison invented the electric light bulb, no one believed it could be done. Before the Wright Brothers flew at Kitty Hawk, human flight was a fantasy. Before Einstein formulated E=MC2, relativity theory was nonexistent. Before the United States, neither a democrat union nor constitutional rights had ever been actualized as a form of government and as inalienable human rights. No one has ever seen an atom but we know that it is there. We have always, or seemingly always, adjusted conflict through adversarial means. We now have discovered an alternative that is as revolutionary in resolving human conflict as these other discoveries have been in their fields.
It took 100 college professors to educate me and my 15-year-old son to bring me to this realization. He has been formally learning conflict resolution skills in school since kindergarten. He is now a teenager and the “go to” man in his high school peer mediation program. I have attended his training sessions and watched him conduct a mediation session (with the parties’ consent). I see little difference in principle in what he does as a peer mediator from what the professional mediator does in a sophisticated “adult” dispute. Revealed in what he and his fellow peer mediators are doing, is further evidence of the potential for a massive change in social attitudes towards how conflict resolution can be more constructively and successfully taught and practiced by an entire society.
THEORETICAL BASES FOR OUR NEW CONFLICT RESOLUTION MODEL
1. MEDIATION THEORY
The mediation theory of conflict resolution is distinguished from the adversarial dispute resolution model by its emphasis upon the central decision-making role that the participants play in the ultimate outcome of the conflict.
Mediation theory also conceives the role of the lawyer differently–the lawyer is regarded as more advisor and counselor-at-law than the gladiator combatant-at-law. Moreover, while lawyers have traditionally been the gatekeepers to the dispute resolution process, in mediation, the parties possess the keys to the gates. In mediation theory, the law serves as the guideline for bringing understanding to the parties in conflict and the lawyers serve as guides in the dispute resolution process. Take for example the legal concept of the “common law”¨– a law common to all participants in the dispute. In mediation theory, the idea of common law is that we share a common concept of reality because, in part, of the basic biological fact that we are a common species. Furthermore, in mediation theory, the “common law” connotes the system of common social and cultural norms, beliefs, habits and traditions shared by the disputing parties. True enough, the world is filled with diverse cultures, political systems and beliefs. Notwithstanding this diversity, the fundamental fact is that we all live in the same uni-verse where there is a natural unity at the most basic levels of physical and social existence. In mediation theory, one of the mediator’s biggest jobs is to help the parties and lawyers find their common framework for discussion–their “common law”–from which they can operate to form the consensus necessary to resolve their dispute. No matter the legal characterization of the dispute, whether as a contract, a tort or governmental regulation, the knowledge and application of this “common law” is accepted and shared by the disputants in order to address and resolve their competing interests and needs. Similarly in mediation theory, the legal concept of the ¡§reasonable person¡¨ means that all people naturally and fundamentally share a common standard of conduct (just as they share a “common law”). Mediation theory postulates that within each person is the soul of the reasonable person and that right and reasonable conduct is within the understanding of every person. Parties in dispute, then, are to measure their own and each other’s conduct against this “reasonable person” standard. Combine the principle of “common law”¨ as one that binds all of us to a socially shared standard of conduct (at least for the purposes of the creating a common framework for discussing the specific dispute) with the “reasonable person” whom we hold to be the personal standard to which everyone’s conduct is to be measured, and the principles and process for dispute resolution change dramatically. We no longer begin with principles of adversarialism and a process that is founded upon seeming irreconcilable differences among the disputants. Rather, we start with the principle that the existence of common ground is a given; we employ a reinvigorated concept of common law as the context in which the solution to the conflict is considered; we measure the disputing parties’ actions against the reasonable person–a shared standard of conduct; and we resolve the conflict using the tools of collaboration of effort, mutuality of interests and satisfaction of human needs.
The lawyers’ role in mediation theory is to help the parties understand these concepts and standards and how they specifically apply to their clients. Furthermore, the lawyers, as counselor-at-law, advise the disputing parties to look for the commonalties and agreements and emphasize mutual interests and needs rather than emphasizing differences to the point where polarization and impasse results.
Skeptics of this new, evolving model of conflict resolution might argue that reasonable persons can differ and that the common law is relative. Consequently, it might also be argued, the common law and reasonable person standards are for illustration purposes only. To give any deeper meaning to them for restructuring a dispute resolution process is at best foolish and at worst doomed to failure. The counter to these arguments is simply that as a society and as a legal establishment, we have accepted and adopted these concepts and standards in recognition that they actually exist and truly describe our reality. If this were not so, the entirety of our legal system and social structure would be without basis and reliant solely upon whimsy in judging each other.
2. MEDITATION THEORY
Modern physics tells us that we do not see the world as it is but we see it as we are. In fact, a Nobel Prize was awarded for the discovery that in any scientific experiment the observer actually influences the observation. Bernard Shaw¡¦s comment seems most fitting then as we refocus our vision on improving our methods of conflict resolution: “Better keep yourself clean and bright; you are the window through which you must see the world.”¨
Professor Leonard Riskin, originator of the “Riskin Grid” a broadly accepted concept for assessing a person¡¦s negotiating (or mediating) style, talks about the concept of “mediation mindfulness”¨ as a valuable skill in resolving any conflict. In short, the idea is that to be really effective, the mediator (and the lawyers and parties) must be present to and fully aware in each moment of the mediation. Successful trial lawyers understand this concept although they may call it something else. Standing in front of the jury, all antennae are out and wiggling picking up every nuance and ripple in the courtroom. It is the combination of heightened perception and intuition that the experienced trial lawyer will tell you guides everything that he/she does from gestures, to word choice, voice modulation and timing.
Mediation mindfulness in our new conflict resolution model is much the same thing. It is being tuned into the same channel from which the participants and their lawyers are broadcasting. It is understanding that there is a common source of information and a unique level of communication that can be shared among all participants to a dispute. Once again, the experienced trial lawyer knows that this place is where power, art and peak performance originates–it is the place where what to do and when to do it becomes unspoken and automatic. From the mediator¡¦s viewpoint, this state of mind is the zone where he/she is tuned to the parties’ communications and where one can be transparent to external influences that impair operating within the parties’ reality. The meditation theory of conflict resolution, therefore, recognizes that when parties counsel and the mediator are fully conscious to their respective interests and needs, they have the key to understanding the source of the conflict and locating the means for resolution The Chinese symbol for “crisis”¨ is made up of two characters: One meaning danger and the other meaning opportunity. Mediator mindfulness means helping the parties remain above the danger (the confusion that surrounds any conflict) so that they can be alert to the opportunities for resolution that are present within every crisis. It also means being aware of and open to receive those often subtle messages that, if missed, can mean the difference between helping the parties resolve their conflict and an opportunity lost.
3. ELECTROMAGNETISM THEORY
The new model of conflict resolution is fully capable of being taught, studied and practiced as a science. Expose some iron nails to a magnet and they align north and south in an orderly way. Remove the magnet and the nails retain, for a time, their orderliness. Repeat this common experience and scientific principles compel the same result. The new model of conflict resolution operates much like a magnet: Teach the principles of the new conflict resolution model and dramatic change in our traditional dispute resolution culture results. Create an environment in which settlement discussions are conducted and conflict resolution techniques can be practiced and, like the magnet, the disputants will become aligned in both their expectations for resolution and the results of their efforts. Habituate the practice and both the conflict resolution process and how we generally deal with human conflict become permanently magnetized in a positive direction.
This science of conflict resolution is now being used to train a whole generation of students to become adults equipped with personally enduring conflict resolution tools. At the same time, the business world is retooling its employees and managers to be capable of performing their jobs with less conflict and more collaboration. Businesses of all kinds recognize that interpersonal, interdepartmental and intercompany conflicts impair efficiency and detract from successful business planning, execution and, ultimately, profitability. Creating within each employee and manager the ability to be a self-sufficient conflict resolver is, therefore, becoming a business necessity. ADR is an “electromagnetic” force for the positive change in the way we see and address conflict.
BELIEVING IN CHANGE IS SEEING IT
Disbelief is a powerful magnetic force, it attracts those beliefs and actions that support the disbelief. When lawyers and parties have spent months, even years, showing why one side is right and the other is wrong, it is no wonder why pessimism almost always surrounds the initial effort at settlement discussions. When these same participants are focused on the belief that a solution can be found, their minds function like a magnet and attract the ideas and the means to create the solution. As Henry Ford once said, “If you think you can’t or you can, your are right!”¨
Like an individual who walks briskly into a room and then forgets why, organizations, institutions and professions can lose sight of their purpose. So they run faster to make up for their lack of focus (purpose). By failing to take occasional detours from the daily grind of a long journey to refocus on purpose, reengage and rejuvenate, it is easy to become convinced that the way we have been doing things is the best way if not the only way and, therefore, most remain the same. Often, we feel more comfortable with the way things are, although they may not be entirely satisfactory, merely because we are familiar with them.
The growing acceptance of ADR reveals a dramatic shift in how we desire to see ourselves dealing with conflict. At the same time, this change like any change, can be upsetting and threatening. The road may not be free of potholes and obstacles but then change is never carefree. The important thing is to remember that there is no one way to do anything–whether it is to build a house, make a sale, rear a child or cook a meal. So it is with considering whether a new conflict resolution model is worth the time to develop and practice. The other important thing to remember is, as Sophocles observed, “Look and you shall find it. That which is unsought goes undetected.” If we don’t look for improvement in the way we resolve conflict, then we shouldn’t expect to find one.