John Grassby, an international corporate lawyer, was born in Calcutta, India, and grew up in Mexico City. He has taught U.S./Mexico relations at Colorado University and written for The Denver Post on Hispanic issues and our broken health care and legal systems. Has also authored five novels: CALCUTTA SUNRISE © 2012; MEXICO SUNRISE © 2016; LINK © 2018, CIRCO MAXIMUS CIRCO MODERNUS © 2020, and his fifth, THE BITCH is due out early 2022.
Litigation vs. Mediation
People are seldom angry for the reasons they allege, or even at the persons against whom they direct their anger. One of the results is that lawsuits are routinely filed against the wrong people for the wrong reasons making genuine resolution of “the conflict” an unachievable fool’s errand. Worse, this already self-defeating approach is too often exacerbated by “take-no-prisoners; win-whatever-the-cost” trial lawyers, and by “Off with his head! Off with his head!” Judges (as in the Red Queen in Alice in Wonderland), combining to epitomize the antithesis of effective conflict resolution.
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By any measure, since the dawn of history, and no doubt well before, conflict has been an integral aspect of human interactions. This has led to countless ways of seeking to resolve conflict, from stone-ax-wielding Neanderthals, to formal duels with swords or primitive single-shot pistols, to endless regional wars, to world wars, to epic high-seas battles between multi-billion-dollar aircraft carriers, to threatened intercontinental atomic missile warfare. To say that, at the end of the day, these tactics have bombed—pun fully intended—is understatement in the extreme. And this is in spite of satisfactory conflict resolution being, at least in theory, a critical component of civil, i.e., civilized, society.
From the schoolyard to the board room, from seedy neighborhood bars to upscale country clubs, from local trial courts to the Supreme Court, to the U.N.’s International Court of Justice, our fights seem to endure forever, with few if any genuine resolutions in sight. A quick trip through the deep south reveals that, a century and a half after unconditional surrender by General Lee, substantial pockets of the confederacy remain alive and well, with no shortage of neo-rebels ready and willing to resume the fight to the death against the “War of Northern Aggression” on a moment’s notice. Even with final judgments entered by the court (or on the battle-field), underlying enmities and hatreds can continue to fester and worsen for lifetimes, and beyond.
Trial lawyers are direct lineal descendants of trial-by-combat vassals hired by lords to win fights against vassals representing other lords, with whomever won deemed “right.” A thousand years later, we’ve advanced all the way to where it’s not only which side can hire the fiercest stand-in fighter. It’s also which side has the most money, staying power, access to the media and other resources, and can hire the fiercest stand-in fighter, aka trial lawyer, whose “Rules of Professional Conduct” mandate that he/ she “zealously represent the client,” and whose marching orders from the client are, “Whatever it takes, win, baby, win!”
In the vast majority of cases, albeit not all, mediation is a better, faster, easier, less expensive way of addressing conflict resolution than litigation. But the role of mediators is not to suppress, silence, or “settle” conflicts, or fashion agreements that result not in growth, but in reluctant acquiescence and enduring discord. It is to create choices. That means going further, taking risks, opening wounds, and exploring emotionally dangerous terrain to get to the core of what isn’t working. It takes courage, honesty, and self-knowledge to open those Pandora’s boxes of fear, resistance, dishonesty, revenge, and all the defenses and rationalizations that keep individuals, organizations, cultures, and nations locked in con-flict. Often the real advantages of mediation only show up later, with parties more likely to be pleased with and to abide by agreements they themselves have negotiated, plus the perhaps intangible but often huge benefits of resuming civil relations with former adversaries.
Every aspect of elaborately contrived courtrooms is designed to intimidate, starting with the judge sitting at a raised above lesser mortals dais, just like the Red Queen. He/she is also the ultimate arbiter of the absurdly complex rules of evidence and civil and criminal procedure which all appearing in court must follow to the nth degree or risk humiliation and rulings adverse to attorney and client alike, capped by the unlimited power to inflict contempt charges, resulting in fines, imprisonment, or both, for the slightest show of disrespect. Most importantly, of course, they have the sole power to determine “winners” and “losers,” with little or no accountability other than endless, and endlessly expensive, appeals.
That this is hardly an environment conducive to genuine dispute resolution is perfectly acceptable to trial lawyers because their goal is winning, period. It most emphatically is NOT any kind of win-win result. In fact, trial lawyers tend to consider “win-wins” to be outright fictions because their mind set is, if an adversary walks out of the courthouse with so much as the shirt still on his back, the trial lawyer has failed.
To resolve our conflicts, we must move toward them. That is inherently dangerous because it can cause them to temporarily escalate. It is initially difficult to grasp that conflicts are often laden with priceless information that is essential for our growth, learning, intimacy, and change, that they present us with multiple openings for transformation and unique opportunities to let go of old patterns. We need to transcend certain notions of unqualified good and bad, allow for paradox, realize that apparent opposites may both have merit, and recognize the frequent validity of comic strip character Pogo’s quip, “We have met the enemy and he is us.”
The only constant is constant change. Efforts to freeze the status quo, or return to earlier imagined safety seldom if ever succeed. Every honest communication poses a risk that we will hear something that could challenge us or, heaven forbid, even change our minds.
A great danger is our tendency to retreat from conflict, to accommodate and adapt to it. We learn to expect nothing from our conflicts, to tolerate or anticipate them, to engage in them without self-reflection. This means forsaking all possibility of growth, awareness, improved relationships, deeper intimacy, personal transformation, and almost always better results, all of which are lost when we are unwilling to risk open exchanges.
Ralph Waldo Emerson once observed: “Everyone wants to be settled. But only insofar as they are unsettled, is there any hope for them.”