Forward and Upward: A Toddler's View of Conflict Resolution: Lesson #4: Settling a lawsuit requires the parties to focus on the future, not the past
A TODDLER'S VIEW
SETTLING A LAWSUIT REQUIRES THE PARTIES
TO FOCUS ON THE FUTURE, NOT THE PAST
Readers will recall that last year's newsletter was a series of "Life Lessons", in tribute to my late mother. This year, I am happy to report that I am learning and re-learning new life lessons through the eyes of the next generation, my granddaughter. Like "My Mother's Legacy", these are lessons that serve me well as I apply them to mediation.
Big news happens upon a toddler's milestone second birthday! Clara finally has permission to have her car seat reversed so that she can face forward, not back. (In her case, this is especially beneficial since she has suffered from miserable carsickness since she was an infant.)
In trial, a jury is asked to focus upon the past bad acts in order to attempt to make things right. They are invited to take a view, in hindsight, to determine what should have been done differently at a particular point in time based upon all of the evidence gathered up after that pivotal moment.
In mediation, a different perspective is required. We mediators cannot change the past for the disputants. None of us can take away the injuries or injustices that our clients have presented to us. All that we have the power to do is to make the future better. Yes, we are often presented with evidence of misconduct, but ultimately we are unable to un-ring bells, to reverse history, to un-do what has already transpired, including to recover sunk costs in the course of the litigation.
What this means is that in order to effectively settle cases, we need to engage in a metaphoric change in perspective. Would $X damages help to recover from the loss by paying for treatment, re-training for a different job or bridging the gap until new and better employment can be found? Would paying $Y now relieve the Defendant from the monthly attorneys bills, disruption to their business and negative impact on morale and allow them to get back to the business they do well?
Like a toddler, at some point healthy adults all need to face the future and look to what is ahead, not continue to dwell upon what has befallen them in the past. If you can approach each mediation as an opportunity to re-focus from where you've been to where you may go, you will likely enjoy success in mediation by delivering satisfying results to your clients. (And perhaps you can also avoid the metaphoric car sickness that comes from facing backwards in motion, too.)
P.S.: Next month I am travelling to the International Academy of Mediator's semi-annual Conference, this year in Edinburgh, Scotland. I am very pleased to have been invited to lead a "Bothy" dialogue with my colleague and friend, Douglas Murphy, QC, of Brisbane, Australia on "Gender, Bias and Mediation". I'll report to you next month about our revelations!
Jan Frankel Schau
ADR Services, Inc.
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