The Journal of The DuPage County Bar Association

Back Issues > Vol. 12 (1999-00)

There Is No Vindication In Litigation
By Richard J. Kulerski, J.D.

You don’t see many litigants smiling when they leave court. You do, however, see a lot of happy faces leaving mediation. That’s because the participants have just had the opportunity to state their positions and say everything that they felt needed to be said.

Most clients come into the legal system thinking they have more rights than they really do. It becomes the lawyer’s task to reshape their concept of justice so that it conforms to the law as it really is. Trying to change the way a client sees things can be frustrating and much less pleasant than presenting that same client’s position to either opposing counsel or to the court.

Parties don’t settle by debating the issues. The issues are what brought them into our arena. They settle when they sense that it benefits them to settle.

However, and in this regard, there is a mediation technique which can be of assistance to both lawyers and mediators. By use of this method, we no longer have to attempt to change the client’s perspective. We simply work with it.

We start by accepting that a party’s perspective is personal, subjective and very deeply held. It cannot be changed and is impervious to criticism.

By asking a few (sometimes leading) questions, the attorney/mediator can subtly change the focus from winning or losing to that of the possible benefits of negotiating an acceptable resolution. A few of these questions are:

Q: "If everything was as clear as you say, we wouldn’t need courts would we?"

Q: "You don’t want to be arguing about this same issue ten months from now, do you?

Q: "Right here, right now, do you think the other side is going to be able to change your mind?"

Q: "Doesn’t it stand to reason, then, that you’re not going to be able to change his/her mind either?"

Q: "The other side wouldn’t get very far, would they, if all they did was blame you or criticize you?"

Q: "You’ve got to agree, then, that he/she is not going to hear what you are saying if you also take a negative approach?"

Q: "You do agree, don’t you, that you both can’t win in court?"

Q: "You do agree, don’t you, that you both cannot get exactly what you want?"

Q: "It doesn’t cost you anything, does it, to allow the other party to have his or her belief or perspective?"

Q: "Are you willing to listen to his/her point of view as long as you get to explain yours?"

Q: "Are you interested in exploring a way to leave here today with an acceptable solution even though the two of you still don’t see eye to eye?"

Q: "Doesn’t it make sense that he/she isn’t going to budge until you, at least, show some willingness to do the same?"

Q: "I bet you’d be willing to engage in some trade-offs if it was in your best interest, wouldn’t you?

Q: "Can I tell him/her that you are willing to consider some ideas that might improve things?"

If the parties are allowed to believe that the choice is between winning and losing, they are less likely to behave in ways that promote the complex set of characteristics needed to balance interests; and, therefore, will be less likely to negotiate a resolution.

When the participants feel that it is in their best interest to find some level of acceptability, this opens the door for parties to explore options or alternatives that the parties have not previously considered. The best options or alternatives are obtained if the parties are able to separate the invention of options from a commitment to these options. Creativity expands the size of the pie being negotiated. Wonderful things happen if both parties believe that they have been heard and that they are free to discuss ideas without necessarily locking themselves in. An elegant option will guarantee settlement.

Nothing is more persuasive than listening. If you want to get the other party to see your view, he or she must be convinced that you see their view. You must ask questions in order to understand where they’re coming from. When you do understand their position, explain it to them. When you can explain the other side’s case better than they can, and they hear you say the words, the dispute is over. People want to be heard and validated. Mediation provides that opportunity.

In The Legal System

Facts count

Parties’ emotions don’t matter

The parties attack each other

Lawyers do the talking

Anything good that a party did in the past is ignored

Focus is on the past

In The World of Mediation

Parties’ perspectives count much more than facts

Parties’ emotions are valued

The problem is attacked

Parties get to say what they want

Proper recognition is given for past services or deeds

Focus is on the future

An effective mediator will:

· Dismantle the bomb.

· Ask questions without attitude.

· Realize that both parties must bring home a trophy.

· Bring the parties to their senses, not their knees.

· Convey respect to the parties.

· Value the parties’ emotions.

· Try to hear what the parties are hearing.

· Try to figure out what will make sense to the parties.

· Never register approval or disapproval of what is being said.

· Never interrupt and never provide unsolicited advice.

· Never pass up an opportunity to be silent.

One does not cooperate or collaborate because it is the right thing to do. It is done because it is the most effective way to achieve the maximization of self-interest.

The human spirit requires approval. And recognition. And it needs to be heard. Effective mediation techniques make those things happen.

Richard Kulerski offices in Oak Brook and has practiced law in Illinois since 1963. He has completed over 175 hours of mediation training.

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