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The Case for Forgiveness in Legal Disputes

by Eileen Barker
February 2014 Eileen Barker

I. Introduction

Although the notion of forgiveness may seem far afield from the world of law, forgiveness is a powerful and important tool for conflict resolution. Litigants need legal solutions, but they also need peace, healing, and closure. Forgiveness provides a vehicle for achieving all of these.

In an effort to win, well-meaning litigators sometimes counsel their client against forgiveness. In one incident, a woman was seeking compensation for serious medical injuries, but wanted to forgive the person responsible. She was dismayed when her attorney told her: “Don’t forgive. It will hurt your case.”4 While trying to achieve a legal victory and protect his client’s economic interests, the lawyer ignored his client’s other interests, such as being at peace with what had happened to her, and having compassion towards the person responsible for her injuries.

The lawyer’s aversion to forgiveness was likely based on the unspoken dictates of an adversarial legal culture, which forces parties to exaggerate their differences, their injuries and their outrage. The legal system focuses on blame and denial, causing people to become even more polarized, distrustful, and angry than they were when they started. In doing so, it generally overlooks the tremendous suffering that litigants often experience. Instead, the legal system attempts to monetize pain and suffering based on the greatest legal fiction of all: that money can restore wholeness.

Forgiveness has the potential to introduce an element of humanity and healing that has been absent from the legal field. This is vital when many in society hold cynicism and mistrust towards the legal system, and many lawyers report great dissatisfaction with their jobs, wishing for careers more in line with their values. By recognizing the larger issues implicated by conflict, lawyers have the opportunity to restore dignity and leadership to the legal profession. While litigation often amounts to little more than expensive gamesmanship, forgiveness provides an avenue of dispute resolution that can be both practical and transformative. It offers the parties the chance to be made whole beyond a judgment or monetary compensation.

In the face of conflict, forgiveness can be a powerful and empowering choice. As Gandhi said: “The weak can never forgive. Forgiveness is an attribute of the strong. Forgiving doesn’t mean an injured person must condone what happened. Nor does it mean that he forgets what occurred. Rather, forgiveness is a decision to accept what cannot be changed, while changing the one thing that is within one’s control: one’s own story. At its essence, forgiveness is a decision to create a new story about what occurred. It is a means of releasing the past, empowering oneself, and moving forward. This article offers an overview of forgiveness. It is my hope that with education and understanding, lawyers and mediators will be better able to support clients in the area of forgiveness. It begins by discussing two types of forgiveness relevant to legal disputes: (1) bilateral forgiveness, in which forgiveness is exchanged for an apology or other act of remorse, and (2) unilateral forgiveness, in which forgiveness is undertaken by one party alone. It then examines common misconceptions about forgiveness, reasons for resistance to forgiveness, and how forgiveness relates to a lawyer’s ethical obligations. Finally, it provides suggestions for how lawyers and mediators can add forgiveness to the menu of options available for their clients.

II. Understanding Forgiveness

The essence of forgiveness is the giving up of resentment, anger, and hatred. Kenneth Cloke, a pioneer in championing forgiveness in mediation, emphasizes that forgiveness is a process, and a way to release the pain of the past:

Forgiveness is not only a result, but a process of letting go of the past and opening to the future, of reclaiming energy from people and events we do not need in our lives, and of accepting ourselves more fully. It is a way of releasing ourselves from the past, from the burden of our own false expectations, and from the pain we have experienced at the hands of others. It is a release from judgment, including our judgments of ourselves.

Notwithstanding the benefits of forgiving, experts caution against a mediator, or any third person, telling the parties that they should forgive. “The ability to dispense, but also withhold, forgiveness is an ennobling capacity and part of the dignity to be reclaimed by those who survive the wrongdoing.” Thus, the narrow path a mediator or lawyer must skillfully navigate is to explore the possibility of forgiveness with clients, when appropriate, while fully honoring forgiveness as a matter of personal decision:

Forgiveness always is a choice, one the client is free to try or to reject. There should never be subtle pressure on the client to forgive. At the same time, however, some clients blanch at the idea of forgiveness at first but then change their minds. The person’s first pronouncement about forgiveness is not necessarily the last.

This is Part 1 of a two-part article.

Biography


Eileen Barker is a mediator based in San Rafael, CA who specializes in helping parties achieve amicable resolutions in business, employment and family conflicts.  She teaches classes on mediation, conflict resolution and forgiveness and is an Adjunct Professor of Law at UC Berkeley.

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Website: www.barker-mediation.com

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