I occasionally pass the time sitting on the 405 freeway with Kanye West—my secret indulgence shall you say.  While listening to his latest album on the way home from a small claims mediation, one of his songs really struck me.  The song is titled “The Blame Game” from his album “My Beautiful Dark Twisted Fantasy.”  The chorus is quite insightful and particularly informative of my experience that day in mediation.

  I shall highlight the chorus for you:

“Let’s play the blame game, I love you more

Let’s play the blame game for sure

Let’s call out names, names, I hate you more

Let’s call out names, names, for sure”

If you look up the rest of the lyrics, be warned—the language is anything but pleasant.  At the same time, the song represents the language and emotions of many disputes. 

Disputes fraught with intimacy and emotions typically involve the “blame game” and “name-calling.”  Heated debate, offensive language, and extreme emotions are common and will likely be a central theme of the mediation.

  This was the case in my mediation session. 

The dispute I mediated was fairly simple on its face, involving an attorney and his former-client.  The lawyer filed a small-claims action against his former client because the client refused to pay the remaining balance for the legal services provided.  Despite the simplistic legal issues involved, the tension and emotions in the room were quite evident.

While in a private session, I found myself faced with vulgar language coming from the attorney—as though I would not be able to understand his level of disdain without the use of vulgarities.  I was thrown off guard by the attorney’s inappropriate comments to me and his endless use of the “f-word” directed towards the other party.   He provided inappropriate anecdotes about how clients are ungrateful for the services an attorney provides.  He said lawyers must get clients to pay upfront before the lawyer “wins” because client are ungrateful…just like a prostitute must demand payment up front because afterwards the requested “act” doesn’t seem as valuable. Upon reflection of the incident, I would have been wise to draw boundaries about the proper behavior for a mediation session.  I should have then demanded compliance with those boundaries as a matter of civility and respect.

In reality though, the behavior or should I say misbehavior of the party in this case is completely normal.  Emotions are often the driving force behind one’s actions and parties can lose sight of civility and common respect.  While the scope of the song’s insights are limited, I think it points out how often we blame others and get caught up in name-calling.

Kanye West’s song states, “At the end of it, you know we both were wrong.”  Most likely, both parties are partly to blame in every dispute—if not for the initial dispute then for the escalation of the conflict.  In a mediation, the only thing the mediator can do is to try and bring both litigants to a settlement where they each would have been better off.  This can only be done by moving past positions, name-calling, and emotions and examining the underlying interest. 

 

Mikita is the Editor-in-Chief of ADR Times. As an associate at Northrup Schlueter LLC, she focuses predominantly on litigation and arbitration in the field of construction insurance defense. She received her Juris Doctorate at Pepperdine and a Masters in Dispute Resolution from the Straus Institute. Mikita has been published in the Pepperdine Dispute Resolution Law Journal and worked at the Centre for Effective Dispute Resolution in London. As an avid traveler, she continues to explore various dispute resolution issues and how they vary from region to region.