Oklahoma Bar Journal

Why Are We Still Fighting?

By Melissa Fell

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When he was still a practicing country lawyer, Abe Lincoln wrote: “Discourage litigation. Persuade neighbors to compromise whenever you can … As a peacemaker, the lawyer has a superior opportunity of becoming a good [person].” There is so much to unpack out of these wise words, but most telling is Lincoln was implying attorneys should strive to be the best kind of person they could through their guidance during the process of legal representation.

What does it mean to be a peacemaker? Why even bother when we are taught the skills and rewarded by a judicial system that puts parties at odds in courtroom battles for a decision with a “winner” and a “loser”? By default, when a judge or other decision maker has to decide between differing sides, it must be based upon the information presented within the process, limited by the abilities of the attorneys and/or parties themselves providing the information within the parameters of the laws governing the process. If an attorney believes they have the better facts and case, all the more reason to forge ahead to the battleground to prevail.

The whole process is, by design, a gladiator battle, with kudos and recognition awarded to those who prevail. A win often leads to more cases as it may be used for advertising, awards and accolades, which is all great for the attorneys and their firms, but who does it really serve other than them? How does it serve the best interest of the client? How do you resolve an issue around something that cannot be “split” or come down to a dollar amount when the underlying issue has not even been addressed? If the attorneys are so focused on the “win,” how do they know if or how they could have ensured the best result for their client?

The path of peacemaker is not an easy one. For many, once the courtroom skills are embedded in their routine, it becomes second nature to identify the conflict, choose the desired outcome and build the case around the outcome desired. Clients become willing participants in this process, enticed into developing their positions from the outset. “What do you want?” is the first and continued focus once they cross the threshold. The judge becomes the arbiter of the outcome, and typically either the client gets what they want or not, thus the “win or lose” paradigm.

Even the late Supreme Court Chief Justice Warren Burger voiced his concern over the misguided aim of the legal profession when he claimed, “The entire legal profession … has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be healers of conflict.” But the process doesn’t have to look that way. The process of alternative dispute resolution is designed to allow for exploration of the “why” with options and solutions in ways not available when strictly interpreting and following statutes and case law. It takes emotional intelligence to help the client identify why they are there, deconstruct the conflict and explore much more intimately the needs, interests, concerns, fears and other motivating factors at play.

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This takes time, patience and most importantly, listening – the kind of active listening that means you are engaging with the client and working to draw out those motivating factors that will help more fully resolve their issue and lead to creative and constructive solutions, listening that may provide not just a resolution but healing of the divisiveness that led to the dispute in the first place. The task of the attorney can and should be so much broader than just to take a client and process them to a win in front of a judge who may never address the underlying issues at hand. No peace comes from the process in that manner. With an attorney who is focused on interests rather than concrete positions, the result becomes an outcome the parties design and own as they walk away from the process.

I would challenge the use of the word “compromise” as used by the venerable lawyer from Illinois for today’s peacemakers. It implies each side is required to give up on certain interests and needs that may otherwise be satisfied through the process with patience and trust in our clients to find the path that brings them the best outcome. This is often the case in mediations today. Most times, the parties are ordered to mediation or arbitration by the court prior to proceeding to trial, with the hope they will settle to save their own and the court’s resources. The biggest disservice an attorney or mediator/arbitrator can do is start from position statements. They are often rushed, with no time allowed for either side to tell their story. It becomes a pressurized settlement negotiation of laying out positions, then one by one giving up or giving in on those positions until each has given up enough to call a draw, where the mediator “beats each side up” until they relent enough to come to a more middle of the road compromise. When the attorneys and neutrals create a true problem-solving atmosphere, we become a part of the solution rather than the conflict.

The lawyer sets the tone from the time they first interact with a client and throughout representation in every way they and their staff engage with the client, the other party and their counsel. Clients are typically vulnerable when working with an attorney, taking their cues from the person they have hired to guide them and tell them what to do. A wise counsel will use caution in engaging the client in the battle and instead focus on truly helping clients find the best resolution for their life that leaves them with more peace and calm than when they first came to them.

If a client is led to believe they should “win” on any point or points or they “have a right,” they will have that stuck in their mind and no doubt leave a mediation or settlement conference feeling they did not win and had to give up what they thought they really wanted and take less as a compromise. In our fervor to vigorously represent our clients, the patience required to be a peacemaker becomes increasingly daunting as we continue to assert the positions of our client. But it need not be so. By refocusing on the underlying interests, we may provide the peace and opportunity for problem solving and thus healing. A successful attorney and neutral should close a case not celebrating a “win,” indicating there was a “loser” but rather secure in the comfort that the clients were brought a resolution that best worked for them and their situation. We all bring more peace into the lives of our clients and ourselves. So, I ask, why are we still fighting?

Author’s Note:
Inspiration for the article came from lawyers David Hoffman and Kevin Scudder from their contributions to the book titled Building a Successful Collaborative Family Law Practice by Forrest S. Mosten and Adam B. Cordover. 

Melissa Fell is a collaborative attorney, mediator and certified life coach. She focuses on assisting clients through the process of divorce and related family issues outside of the courtroom. Ms. Fell is an active board member and president of the Oklahoma Academy of Collaborative Professionals and serves as the ADR Section chair for the Tulsa County Bar Association.

Originally published in the Oklahoma Bar Journal -- OBJ 91 No. 9 (November 2020)