MEDIATION: Beyond Legal Disputes?
Updated: May 13, 2021
No one can dispute that we live in turbulent times. Turmoil following the presidential election in the United States led the news cycle for months. At the center of the storm is a conflict that has and will continue to divide us as a nation. Like many of us, I feel that this divide has spilled over into our day to day lives.
What we see in the media suggests that political parties appear to be unable to effectively communicate their differences in a constructive manner. By constructive, I mean in a way that is designed to promote and communicate a mutual understanding of what is important to each side. It goes without saying that the current state of political affairs in our country is complex and the barriers that divides our society are multi-faceted. It would be naïve to believe that resolution of the country’s problems will be easy or quick.
As an attorney and mediator, it occurs to me that certain parallels can be drawn between political conflict and civil litigation. The parties to complex and simple lawsuits are often faced with what are perceived (or very real) insurmountable differences. The parties may believe that the gap is simply too wide to bridge. While political and cultural disputes may not be readily susceptible to mediated resolution, mediation as a form of conflict resolution in litigation has time and again proven to be successful in solving complex disputes involving disparate stakeholders who hold different and oftentimes, incompatible views.
An important key to any successful resolution is ongoing communication. Too often, opportunities for dispute resolution are lost when the parties to a dispute no longer communicate with one another. This breakdown can occur at different times and for different reasons.
Silence is a common example of an emotional reaction which impedes the conflict resolution process. A party may have lost faith that a solution is possible and therefore remains silent, or they simply choose to use silence a weapon designed to punish the opponent. A refusal to communicate is also used as a tool to create tension and unease in the other side. While silence or said differently, a refusal to acknowledge the other side’s position, may be temporarily appropriate for a number of reasons, a complete shutdown of communication can lead to a total breakdown of the negotiating process and in turn, a failed mediation. In the political context, we see this when elected officials refuse to “reach across the aisle” out of fear of retribution at the ballot box or in an attempt to leverage their position.
Effective trial lawyers (and politicians) are skilled advocates. There is a difference however, between advocating for an issue versus the relentless rejection of the opposing viewpoint. On a larger stage, this exhibits itself as an epistemic state where an untenable position is taken despite contrary facts. In this scenario, a party’s energy often shifts to proving the validity of their position or more often than not, attempting to invalidate the position of their negotiating opponent altogether. If this focus is maintained for a longer duration, one party or the other will often cease to participate on the belief that the differences are anchored and further communication is worthless. This sort of stalemate may have a biological basis. In a recent study by Dr. Joy Hirsch at the Yale School of Medicine, participants who were asked to argue conflicting viewpoints with one another exhibited entirely dissimilar neural activities in their brains as opposed to those observed when people agreed with one another.
One tool important to disrupting the freeze of impasse both in politics and in civil litigation is continued engagement of the parties in finding a solution to conflict as opposed to entrenchment. At some point a successful mediation pivots to a point where the parties acknowledge and accept certain differences but choose to move past them in search of a solution that puts an end to the dispute. This process can be time consuming and on occasion, multiple mediation sessions are necessary to reach a turning point.
Regardless of the process, common to any successful mediation is a continuum of exchanged ideas and concepts. When that process breaks down, the risk of failure and a widening of the chasm looms large. Ongoing communication between parties in a dispute facilitated by a good mediator is an important key to success. Whether neutrals can effectively assist nations in the resolution of political disputes is well beyond the scope of this article. Fortunately, the process is readily available to us and our clients.