The Comfort of Ritualistic Problem Solving
by
David B. Harwi, Esq. and George Reath, Jr., Esq.

We as lawyers have rituals to resolve disputes. Over the years we become very comfortable with the rituals. Plaintiff files a complaint; defendant files an answer; plaintiff files form discovery requests; defendant responds; plaintiff and defendant depose witnesses; defendant files a motion for summary judgment; plaintiff opposes the motion; the judge decides and the case proceeds accordingly. Slowly issues are defined even if resolution is not forthcoming.

The ritualistic approach is not limited to litigation. Business people strike a deal; lawyers become involved; buyer’s counsel prints his template agreement; seller’s counsel objects to certain warranties and covenants which don’t conform to her template agreement; buyer’s counsel makes standard arguments for the necessities of a warranty; seller’s counsel responds with its standard arguments.

These familiar approaches make everyone very comfortable. We know, we’ve been there. The incentives to continue this approach to dispute resolution are very strong.

Why? We know the approach will eventually come to some resolution. These rituals care for everyone involved in the dispute resolution process--parties, lawyers, factfinders and lawgivers.

Why change? Increasingly clients are realizing that it makes economic and emotional good sense to resolve most disputes more quickly and at lower cost than is possible under the traditional rituals. Clients are therefore pressuring the legal profession to become more efficient and less costly.

Mediation is one of the methods of resolving some disputes quickly and at less cost than traditional adversary rituals. But mediation, at least on a large scale, represents a major change in the way disputes are resolved.

Change always spawns anxiety. The legal profession in some geographic areas therefore resists mediation and other forms of dispute resolution because it is not familiar with the rituals involved.

While mediation can and sometimes should be characterized as “warm and fuzzy”, containing far fewer boundaries and rules than traditional forms of dispute resolution rituals, it is not without an operating system whose rituals can be easily learned and modified to accomplish the disputants’ goals. The neutral plays a critical role in the understanding and application of the rituals involved. For example in litigation there is complaint and answer in which factual perspectives, legal arguments and positions are established - a litigation ritual. In mediation the ritual is different but not that different. At Triage Mediation the process begins with preparation - working with each of the disputants and their representatives to define the process needed, expectations and interests (as opposed to positions; take a look at our story about the kids and the orange in our article “Mediation: The Cost Effective Way to Resolve Disputes”) and initial presentations in the mediation. As with litigation this is not rocket science. The rituals can be learned easily and quickly.

Learning some new rituals can produce dramatic results both in the resolution and client satisfaction. It’s not hard to become comfortable with these rituals.

©Triage Mediation Services Inc. 2001

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