Friends, not enemies

As a mediator, I listen to all sides and hear how each perceives the other. With this insight, I help parties collaborate and avoid acts and proposals that may not be received in the manner intended.

I wish all litigators could see the mediator's perspective. If they did, I think they would see:

1. PAST IS PAST.

Much of what I hear is about the past. It makes sense. Litigation is about a past event. But the reality of mediations, negotiations, and settlements is that they occur in the present. No matter what happened or how we characterize the past, it is over. The past is past. It cannot be changed. The only thing we can change is today and tomorrow. Not the past.

2. ALTERNATIVES ARE NOW.

While the past is past, our choice of alternative futures is now. We settle 98% of all cases filed. Each of those settlements is in the present. It is about the value, benefits, and risks of cooperating now. It is about the alternatives facing the parties now. What could have been is of no consequence. The only issues are what will likely happen without an agreement now, how will we cooperate to create a better future now, and do we have the courage to jointly change our futures now.

3. NO SPORT, NO WAR.

Although we often use analogies of sports and war when talking about litigation, litigation is neither. In sports, we vigorously compete so that one team wins and the other loses. In war, we kill and destroy our opponents to win. In litigation, we do neither. When we settle, we are collaborating. We are agreeing. We are becoming one team. We are building a bridge to the future. Together.

4. NOT ENEMIES.

We also tend to carry the sports and war analogies to the point of calling our opponents our enemies. Enemies are not agreement makers or bridge builders. Good enemies cannot agree or build together. If you are a loyal to your side and an enemy to your opponent, you cannot compromise, you cannot collaborate, you cannot back down, you cannot stop pushing for the absolute ideal goals for your side. To do anything less would make you a traitor and weak and less than a champion for your client and your side. This is a problem. If both sides feel like a traitor and weak and less than a champion by agreeing with an opponent, settlement is impossible. Settlement is only possible because we cheat. We lie to ourselves. Call ourselves zealous advocates. Peek a little outside our enemy masks. And grudgingly compromise for the practical good of our clients who will bear the risks of not agreeing.

5. CREDIBILITY IS CRUCIAL.

While this secret transformation from enemy to collaborator is common, it is costly to each party's credibility. Mediations are an opportunity to put down the swords, brainstorm, and collaborate. The possibilities are limitless. The court's limited procedures and limited remedies are not the only possibilities. The parties can agree to do things that a court cannot order. But to effectively brainstorm and collaborate there must be trust. Trust built on credibility. Being a warrior -- singularly focused on defending a side and slaying the other side -- does not engender trust or credibility. Rather it invites matching enemy aggression to avoid a sense of loss.

6. FALSE CHOICES.

Our traditional win/lose, one truth, philosophies are false choices. We each bring to every situation our different backgrounds and experiences and, not surprisingly, see things differently. To enter with a warrior mentality that the other side is wrong and must surrender to the warrior's will is naïve. When does that happen? How often have you seen attorneys respond to an opponent's bark with a whimper and surrender? And yet so many attorneys enter into negotiations thinking that such bravado is persuasive. They project onto the other unjust motivations and ill-founded intentions ... without exploring the other's interests. Like two students fighting over an orange, they focus on their own wants and desires and their own assumptions about the other without trying to understand the other side. This lack of curiosity blinds them to the possibility that one may want the fruit and the other the rind. In other words, both can achieve 100% of their objectives if they were just a little curious about each other and a little less certain of their own world view.

7. TRANSFORMATIONAL SURPRISE.

Reciprocation is a natural response to any provocation. An eye for an eye. An extreme anchor offer in response to an extreme anchor demand. But reciprocation is not our only option. We control our reactions. Instead of reflexively matching the approach of our opponent, we can respond with surprise, curiosity, empathy, kindness, and reasonableness. These responses are easier to justify. They show control and thoughtfulness and invite their own reciprocal behavior on a different plane. Even if not reciprocated, these responses create a lasting, invaluable, and powerful reputation of courage, credibility, and integrity -- not predictable reflex.

8. FRIENDS NOT ENEMIES.

It takes courage, credibility, and integrity to be friends with an enemy. To listen. To understand. To empathize. To disagree and still be open to collaboration. To seek different destinations and yet see promise in building bridges together. To see, beyond frustration and anger, a trusted friend and a mutual path forward. As Abraham Lincoln once said, "The best way to destroy an enemy is to make him a friend." 