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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