Advocate the Navajo way: with balance

In the Navajo language the word "hozho" roughly translates into a place of balance, peace and harmony. The idea of balance, harmony and a connection to nature is central to the Navajo belief system. Imbalance and disharmony is perceived to be injurious and detrimental, resulting in illness, unhappiness and the making of poor decisions.

Having grown up in Arizona and having always had a fascination with Navajo culture, I was particularly reminded of this when recently reading a detective novel by Anne Hillerman, the daughter of the late, great, mystery writer Tony Hillerman, the creator of the famous Jim Chee and Joe Leaphorn mysteries which take place in the Navajo nation, set mostly in New Mexico. The events of a mediation that occurred when I was halfway through the book made me think about the connection between the Navajo concept of balance and harmony and the mediation process.

At this particular mediation, which concerned a real estate dispute, I was in a separate caucus with the defendant, who had been accused of intentionally concealing construction defects in a single-family home that he sold to the plaintiff buyers. After many hours of discussions, the plaintiffs had given me a reasonable figure to resolve the case. Although the defendant seller had insurance coverage (albeit with many coverage issues), this was an unusual situation that required the defendant himself to contribute to the settlement in order to resolve the case. I should add that there was no controversy on the existence of the defects themselves - although there was substantial controversy as to whether the defendant seller knew about the defects at the time of the sale.

After much discussion the seller agreed to contribute some money to settle. After some further back and forth, we were $2,500 away from settling the case. I needed the defendant seller to contribute this additional $2,500 to reach a resolution. The seller refused. I pointed out that in bigger picture of things, this additional money was not material (the seller was easily able to afford to pay what he had already offered to settle the case and the additional $2,500 was of no consequence to him financially). No luck. I was greeted by an adamant refusal to contribute another penny. I asked why and was told, as sometimes happens: "It's the principle of the thing. I didn't do anything wrong. I don't see why I should have to pay anything."

There are many mediators who, when faced with this sort of declaration of principle, immediately default to the predictable response that principle plays no role in the mediation process nor in the litigation or arbitration process. Although this is technically true, I prefer to take a different approach, because I believe that most of the time, a declaration of principle is an honest expression of feelings and feelings cannot be denied without having a detrimental impact upon the settlement process. For this reason, I always respond to expressions of principle by suggesting that we not throw the expression of principle out the window, but instead try to balance the expression of principle with the other, more practical, realities of lawsuits, such as the cost of lost opportunities, the impact of stress and anxiety and the real risk of economic loss.

I spent some time discussing those ideas with the defendant seller. I pointed out that his insurance coverage was hanging by a thread. I explained that the insurance company would have the right to seek reimbursement for all their defense costs and fees under the holding in Buss v. Superior Court. I discussed the very real risk that he was likely to lose the case. And I discussed the concept of balancing the idea of principle against the practicalities and realities of litigation. I was met with: "I didn't do anything wrong and I don't want to pay anything more."

Ultimately, after much more time and energy, I was able to convince the seller that it made more sense to concentrate on the idea of principal than principle, and we reached a settlement. While I was finishing the Anne Hillerman book a couple of days later, I was reminded of the conversation that occurred during the mediation and I was struck by how "out of balance" the seller was in his view of the world. He was ready to let a good settlement slip away over what was, to him, an inconsequential amount of money because he felt that the principle of the matter should outweigh all of the other countervailing considerations. In making that decision, he was exposing himself to liability for hundreds of thousands of dollars in a case where it was clear that the plaintiff was going to prevail (liability in the case was clear - the fight was going to center on the damages).

This sort of imbalance occurs frequently in mediation. While the form of the imbalance differs, the impact of the imbalance has one consistent effect: It makes the process of resolving cases immeasurably more difficult and sometimes prevents a settlement from taking place. Sometimes the imbalance manifests itself in the form of overconfidence. I hear statements from parties and their lawyers which, in the uncertain world of litigation, simply make no sense, such as "We know we are going to win this case." Or: "There is no way that we are going to lose this case." Or: "I know that summary judgment is hard to get, but I know this judge and this judge is going to grant our motion, there's no doubt about it."

Sometimes the imbalance is more "personal." I have heard lawyers who have never tried a single case tell me, with complete and total confidence, that their analysis of the likely result of the trial of the case is not only more accurate than that of their much more experienced opponent, but better than mine as well. I have also heard lawyers make self-assured pronouncements about how much a judge, jury or arbitrator will award in damages when it's apparent that they have no context whatsoever for making those statements. The gulf between the confidence of the lawyers and their clients who make these assertions and the reality of the situation is sometimes so great that I can only label it as imbalance - it's "off-kilter" in a strange and potentially destructive way.

This kind of imbalance is destructive because it blinds the person to the realities of the situation - there's an imbalance between the emotional and the rational. The emotional side says: "My mind is made up, don't confuse me with the facts." But no rational person who is trying to make an important decision with large amounts of time and money at stake would ever dismiss facts. A rational person would want to know all the facts so that they can analyze the facts in an effort to arrive at the best and most logical conclusion. But a person who is imbalanced rejects rational thought, preferring instead to cling to the irrational, emotional perspective on the issues and usually ends up making an impulsive, wrong-headed decision.

Lawyers are charged with the responsibility to counsel their clients. Even when they are advocates, they must maintain a professional distance because a dispassionate professional distance is essential to the task of objectively, calmly and rationally analyzing facts and legal issues. In short, lawyers must maintain balance. When lawyers allow themselves to become imbalanced they fail in the duty to their clients. Similarly, clients have a responsibility to manage their own affairs. When they become imbalanced, when the emotion, the passion, the hatred, the anger, or the disappointment overcomes the ability to rationally assess risk, clients manage their affairs poorly, sometimes abysmally so.

The next time you find yourself at mediation unable to hear or process discussions about risk, or you hear yourself making pronouncements about the absolute certainty that a particular result will obtain, ask yourself whether you are out of balance. Listen with equal care to what your client is saying and ask yourself whether your client is considering the issues in a balanced way or whether your client's emotions have pushed his analysis out of balance to the detriment of a logical, rational analysis. Pulling yourself or your client back into balance will nearly always result in a resolution of the conflict. Resolving conflict always makes the relationship between you and your client stronger and more satisfactory.

By the way, the book, "Rock With Wings," was pretty damn good.