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Litigation Violence: When Emotion overcomes Rationality

July 6, 2013

In today’s Washington Post, one finds yet another article on the unfortunate current violence in Egypt.

In it, the writers note, “Frustrated, angry civilians divided themselves into warring camps that went after each other with clubs, rocks and gasoline bombs….”  See, http://www.washingtonpost.com/world/middle_east/morsi-backers-clash-with-opponents-security-forces-as-egypt-violence-escalates/2013/07/06/e773378c-e62a-11e2-80eb-3145e2994a55_story.html?hpid=z1

In mediation, fortunately, I have not seen such physical violence.

But I have seen “frustrated, angry” litigants and their lawyers attempting to raise the stakes by threatening aggressive litigation tactics meant to cause the other side to cower and cave in.

This is “litigation violence” as I see it, driven by the same or similar emotions as the crowd violence described above.

The reaction from the other side is rarely the desired one.

Rather than causing the other side to make the desired concessions, threatened litigation violence often causes threatened retaliation.

The parties get farther apart and the negotiation, if there was one, breaks down.

Does this make sense?  Not to me, but I see it all the time.

Is it human nature?  I suppose so.

Is it productive?  In my view, hardly.

Those who know much more science than I do suggest that these uncontrolled and uncontrollable emotions reside in and are triggered deep within our ancient brains, and that such emotions, unless dealt with, override the rational frontal lobe that controls problem solving and other things.

The eternal conflict, from the mediator’s perspective, is whether the participants in the mediation will allow the mediator to try to deal with these and other emotions so that rational thought and problem solving will resume and peace will result.

Often there is deep hurt among the disputants from something that happened that they think shouldn’t have happened, or something that didn’t happen that they think should have.

Often at hand there is also: outrage, anger, resentment, remorse, humiliation, embarrassment, punishment, retribution, vindication, powerlessness, or whatever.

All of these may be scary subjects for the lawyers and their clients.

As a consequence, they are sometimes avoided.

The participants shy away from or refuse to allow the mediator’s attempts to help identify and get past these issues.

Maybe no joint session is permitted.

Perhaps even a private discussion of these emotional issues, in caucus, is not tolerated.

So maybe litigation violence controls the day.

And perhaps resolution eludes the participants.

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California.  His business website is at http://karpmediation.com where more information about his mediation services is available.

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