By Jim W. Hildreth
Communication breakdown often leads to the doorway of anger, resentment, hostility, and the filing of a lawsuit. Often this doorway leads a prospective client to a member of the local bar. They sit down and together they discuss the merits of a potential lawsuit.
Today’s top law schools such as UC Berkeley, Stanford, and Pepperdine (to name a few) are training law students to act not only as advocates but are going a new step further to train students to “problem solve” versus litigation. Law schools are now embracing negotiation via Alternative Dispute Resolution (ADR). Seasoned members of the bar are also finding benefits in utilizing ADR as to reestablishing communications and resolving conflicts earlier instead of waiting to settle on the courthouse steps.
The legal system is known for long delays, causing backlogs and crowded courtrooms. In 2013, there have been multiple announcements of budget restraints which include closing of courts across California. Los Angeles alone has had to close more than thirty courtrooms and the Civil Division of ADR is no longer available. In addition to the changes in the legal system, the retention of counsel is expensive. As a result, pro pers are flooding California courtrooms in “Small Claims” and Family Law Issues in record numbers. This shift is due perhaps in part to the new great recession that started in 2005.
As a California-based mediator I witness first-hand the breakdown of communications in each and every dispute. Mediators are trained to facilitate open communications. That job description involves conflict, which can often be painful and full of anger and resentment.
A case in point: two neighbors in Northern California were involved in the mauling death of one of their dogs. The lawsuit involved high emotions, expensive medical bills, and a complete breakdown in neighbor-to-neighbor communications.
At first, the conflict was smooth with one neighbor offering to pay installments towards the veterinary bills as “Good Faith.” As the recession grew deeper in the rural community of Sonora, California, priorities shifted as neither neighbor had the ability to pay the medical bills. Threats of foreclosure of their home became top priority.
At this point, the dispute turned into denial and blame. The one time friendly neighbors became “Plaintiff” and “Defendant.” The court wisely suggested Alternate Dispute Resolution. Both neighbors reluctantly entered mediation, hostile and uncooperative. Hours were spent with the goal of opening communication lines and in the end the mediation failed; however, the mediator neutral made a suggestion that the parties and the court consider a “cooling off” period before trying mediation again.
A month and half transition occurred, with the cooperation of the veterinarian who agreed to delay the monthly invoices. The parties returned to the second mediation. Almost immediately, there was what seemed to be a complete breakdown of communications with only expressions of anger and resentment. It seemed impossible to reach any solution.
Slowly, inch by inch, the mediator was able to negotiate with the parties. The opening of communications via Mediation was the objective. The breakdown in neighbor-to-neighbor communications was the cold reality. The opportunity was finding the solution. The mediator pulled from the mediator’s toolbox various techniques to help the parties find common ground. Hours later the neighbors approved an agreement that was accepted and approved by the court.
A mediator can employ simple techniques to help parties find common ground:
1. Separate the Positions from the People by Learning About Each Other. Create an environment that is open to allowing communications. This technique can be as simple as introductions in the beginning of a mediation session: What is your background? What are your hobbies? How long have you been friends? Can you share with me a picture of your grandchild? These conversations help humanize the adversary, and allow both parties at the mediation table to see one another as humans with dreams and goals.
2. Focus on Common Ground. In one mediation, I turned to the angry disputants and posed a question, if you could be anywhere today, besides this court room, where would you be? The answer was sitting in his cabin next to the fireplace on a cool winter morning. Almost all litigants can agree that they would rather be doing something—or anything—else instead of litigating their dispute in Court.
3. Utilize Humor. Another technique that has been effective for me is using humor in a mediation. I once said with a smile to a defendant, “Bob you did that?” and Bob returned with a smile and said “yeah.” Tension was removed from the room and progress was made in finding a solution.
4. Make an Emotional Connection. Another powerful tool is the power of touch. At an appropriate time in certain situations, a hug or a touch to one’s hand or shoulder can be effective. For me, it has melted hearts, and has led to healing.
5. Share a Meal. A simple tool to help parties find common ground is the simple sharing of food or drink such as coffee, tea, ice water, or a light snack. The mediator can insist that parties sit down together at lunch time. Even small talk at a meal is enough to help the parties connect with one another at some level.
A wise Superior Court Judge once shared excellent advice for how to reach settlement: 90% is using people skills and 10% is the law. Court rooms by nature have lots of rules and regulations, but as a mediator, one can reduce stress by being open, friendly, caring, and using active listening skills. From experience, mediation is the proper venue for exploring opportunities for problem solving and creating an environment that can lead to peace and resolve.
As a mediator, I focus heavily on disputes involving real estate (e.g. landlord-tenant, buyer-seller, agent). In approaching all mediations, my goal is to open the channels of communication which led to the communication breakdown in the first place. The mediator must create a venue for parties to air their anger, hostility, resentment and frustration that compelled them to file a lawsuit in the first place. When both parties are truly communicating and listening to one another, they can better hear the other’s perspective: “The fight is over” “We can be neighbors again” “It was not about the money, I just need to be heard” “I want Respect.”
Finding the common ground in human conflicts is an essential tool in my mediation tool box. By utilizing humor, making emotional connections, learning about one another, and finding common ground, a mediator can open channels of communication. By employing this effective tool, the parties are one step closer to settlement.
- Removal to Federal Court - June 2, 2023
- What Is a Change Order? - May 30, 2023
- What Is Preemption? - May 25, 2023