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Showing compassion is key when parties’ views unrealistically differ from their attorneys’.

July 9, 2011

A party’s unrealistic views, if present, must be managed in order to find resolution to a dispute.  Compassion is key in that effort.

Unrealistic views may be evident when people come to mediation convinced that they will be compensated or vindicated at trial because “justice is on their side,” and/or when they “know” that the judge or jury will confirm their view of the dispute, and/or when they have imbued their attorneys with super abilities or powers that will guarantee success and with the certainty that they will win.

To me, these examples are indicia of the self-deceptive, self-absorbed emotional driving force of powerlessness (or “not being in control”) that has nourished and even escalated the conflict and/or the litigation through to that point in time. It may mean that there is a lot of work to do in the mediation.

A very difficult time can be had by all when the client’s views differ from his or her attorney’s as to the likelihood of success, for instance.

Sometimes the party’s own attorney is not so convinced as is the client.  Or the attorney may change his or her mind when confronted at the mediation with new facts, legal concepts or other influencing factors.

In two mediations recently, I saw a party come to realize that the attorney disagreed strongly with the client’s view of the case, and that, ultimately, the client’s case was not what he or she thought it would be, not what they wanted it to be.

In one mediation, the attorney already knew of the circumstances that made her own opinion more cautious but the client was stuck in the “hope beyond hope” view of the case and wasn’t listening.  There, the attorney sought the help of the mediator to help the client to adjust to a new view.

In another mediation, the attorney learned facts in the mediation about the case that caused him considerable concern, but the client just couldn’t believe it.  Again, the mediator was called upon to help with the new view of the case.

Although each client’s realization about his or her chances of success was essential to compromise and then settlement, in both instances strong emotions erupted when confronted with a different view of the case.  Some of those emotions were directed at the attorneys and some were directed inwardly.  These emotions included anger, disbelief and dismal disappointment, among others.

I remember seeing a look of devastation playing across the face of one.  The other gave looks of gloom.

As to each, a strong sense of compassion overcame me, that must also have played on my face, which communicated sympathy or empathy, but not pity, towards these individuals.  This must have helped them, inasmuch as they both then began to realize they were in a better place ultimately to settle their respective disputes.

Acknowledgment of the parties’ feelings also showed compassion and understanding, which also went a long way toward acceptance.

With compassion, or rachmones (the Yiddish version of compassion), the parties became resigned to their plight in both cases.  Ultimately, they accepted the circumstances, participated in settling the dispute, and signed the settlement agreement.

I do not know if one can learn compassion as a skill, as one could learn to drive a car.  It may be innate or come from the introspective heart over time.  But I think one can learn not to be afraid to show compassion.

Perhaps that was the key to resolution in these cases.


From → Mediation

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