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Mediation: A Great Place for a Return to Professionalism and Civility

September 29, 2016

At the highest level of athletic competition, the Olympics and even in modern professional sports, with millions of dollars and/or entire lives and careers in play, as each hard-fought contest is finished, if you look closely, you will almost always find practically every previously opposing athlete interacting, congratulating and sometimes embracing, their former competition.

True professional athletes have always understood the difference between the contest and the contestants.  There will always be many contests; but there will also be but a few such qualified contestants.  Thus, the very best athletic contestants understand that their lifetime professional reputation, and their future personal and economic relationship with other similar contestants, are  of far greater value than any single contest outcome.

It used to be that way among our legal profession.

Even in the highly charged trial arena, criminal or civil, following the most difficult trial, most trial counsel for both sides in the not-so-distant past would routinely gather socially in mutual professional respect not for any particular outcome, but for their individual professional competence and efforts on behalf of the law and their respective clients.   They celebrated their profession, their experience-earned skills and the time-honored process of justice that permitted the contest, not any particular one-time outcome.

They also accepted that in the very next contest, that outcome could be a total reverse of this one.

Accordingly it was the contestants personal honor and integrity and their professional skill that remained the subject of their primary celebration regardless of any single contest’s outcome.

And, that integrity of the profession and it’s public perception was of a greater goal than any one contest or one professional.

The  American Bar, many of our state bars and numerous of our member-special associations such as the American Board of Trial Advocates (ABOTA),  are increasingly examining a growing issue in our profession: the perceived worsening trend of the lack of civility, cooperation, common courtesy and generally diminished professionalism among some of its members.

Their greater fear:  the Public’s loss of confidence in our entire legal system due simply to its loss of respect for many of its professionals.

This observed decline in professional relationships among peers reportedly found its original roots primarily in the trial arena and appears to many to be getting worse.   Some have related the problem to pure lawyer numbers and the increasing economic pressures upon the modern lawyer to “succeed”.  And, particularly to succeed in the American trial advocacy system in which “winning” seems to be so heavily rewarded in so many ways, with justice always seemingly coming in a distant second.

However, lately and doubly troubling, some believe this “polarization of advocacy” is now creeping into other non-trial areas of the practice of law.  “Prevailing at all cost” seems to be a new all-too-common theme for too many lawyers who increasingly have forgotten the greater societal benefits of a more gentile and trusted practice of law.

Having identified the growing problem, even with some aggressive Bar work toward a solution, too many of our members simply seem not to have considered just what such a problem means, or worse, can mean in the future.

And, too many of those same members are likely leading younger lawyers, directly or indirectly, on a similar downward path.

Perhaps one easy place to begin to objectively evaluate the present and future effects of this failure of professionalism and to really start to practice a RETURN to professionalism and civility, may be in the setting of mediation.

Mediation, the antithesis of advocacy and rather requiring continuing professionalism and cooperation for any real chance of success, is clearly the perfect place to at least begin any lawyer’s return to the higher calling of our legal profession.

Simply put, mediation offers immediate rewards for those who practice their professionalism in this arena and obvious failure to those who do not.

One of the clear hallmarks of those who are repetitively successful in mediation is their credibility, civility and cooperation before, during and even after the mediation process.  And, another all-too-commonality arises between a lack of those same qualities and mediation failure.

Coincidence?  I think not.

Mediation participants remain clearly advocates of their own position.  However, where trial participation seems to reward only one side to the total exclusion of the other, mediation  usually rewards both sides for their  mutual civility, trust and cooperation.   After all, there would be no voluntary resolution unless BOTH sides found it to be in their best MUTUAL interest.

But any dual-resolution success usually comes only to those participants who cooperate and openly share with their opposition, who timely perform what they say they will perform and where trust has been pre-established by similar prior practices in prior similar settings.

And, in mediation, where trust is so critical, a lawyer’s credibility is like money in the bank.  See,  “Learning Mediation Negotiation Technique:  First, Personal and Professional Credibility”, August 23, 2012 and  “Work on Your Personal Credibility to Improve Your Negotiation Success”,  March 9, 2011.

In mediation, there is no judge or jury to “con” into an outcome that may not seem objectively fair.  It is your opposition who must agree with the evidence of the claimant or the defendant and they are not easily misled.

And, no one needs to hide the ball from the Mediator assisting the parties; it is the mediator who must know, objectively, the strengths and weaknesses of competing positions in order to work mutually for BOTH sides to find that perfect common ground for resolution.

And there are other differences that permit/require lawyers to “take the high road” in mediation.

In mediation, timely, knowledgable  concessions to the opposition of obvious position weaknesses is a positive mediation tactic toward resolution, not a negative one; further, compromise is a true art of mediation negotiation, not a failure of advocacy.

In mediation, honestly dealing with actual facts, not rhetoric, is also mandatory for success.  the only one listening to your argument/persuasion is your opposition and they already know fact from rhetoric better than any judge or jury.  Thus, truth and candor is always more rewarded in mediation than advocacy.

In short, mediating participants who can be trusted and believed as they work to achieve a goal that works for both sides are far more rewarded than those who cannot!  There are simply no rewards in mediation for toughness or trickery or gamesmanship.  Or, any of the other failures of common courtesies between parties and counsel.

Therefore, what better place to begin a profession-wide return to the professionalism of civility, cooperation and candor, than Mediation?

At best, these professionalism traits so well rewarded in mediation will be equally rewarded in future trial or in simple everyday dealings with others of our profession.  At worst, those who choose not to practice in such a manner will be more easily identified and specifically shunned.

And the remainder-majority will be meeting socially, again, to mutually celebrate their return to professionalism

Begin with your next mediation?  I am betting it will work. For you and our profession.

Dan, from Crystal River, Florida.

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