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Writing on a Piece of Rice in a World of Injustice

by Victoria Pynchon

From Settle It Now Negotiation Blog

Victoria Pynchon

I often find myself explaining lawyers to their clients and clients to their attorneys.  Here are some typical client complaints I hear about their litigator attorneys:

  • he tells me to forget about the most important losses I've suffered
  • she keeps editing my story 
  • I don't understand why I can't . . . i.e., recover my attorneys' fees or cross-complain, etc. 
  • he wouldn't let me tell the mediator everything I wanted to
  • she didn't let me talk to the other side

And here are the typical litigator complaints I hear about clients:

  • his expectations of success or recovery are commpletely unrealistic
  • if I tell her the weaknesses of her case, she says I've become the enemy
  • I've explained the limitations of the case to him, but he just doesn't seem to understand

Translating the Law into Justice -- An Explanation for Clients

The chart above and photos below are simple ways to explain to clients the gap between the law and justice.  Sample explanation --

The dispute you're having exists in the world of injustice.  

Picture the earth.

Now picture a grain of rice somewhere on the earth.

The grain of rice represents the injustices the law will remedy. 

The earth represents the injustices the law will not. 

Square Pegs in Round Holes -- An Explanation of the "Legal Story" for Clients  

 

It feels like your attorney is "editing" or shaping or "spinning" your story of injustice because she is.  The yellow square represents the facts necessary to obtain relief in court (damages, an injunction, etc.).  It also represents the facts necessary to defeat your opponent's claim for relief.

The entire dispute -- everything that happened inside the green circle -- is generally what you, the client, want to resolve. 

 IT OFTEN INCLUDES FACTS THAT WOULD BE HARMFUL TO YOUR CASE. 

That's why your attorney doesn't let you talk in the presence of the "other side" and asks you not to discuss the dispute with your opponent anymore.  Because you might reveal something in the green area that's bad for proving your case in the yellow area.  

THE MEDIATION ZONE -- AN EXPLANATION FOR ATTORNEYS AND THEIR CLIENTS

Mediators work in the green area.  Clients almost always want to resolve all of the issues raised by the dispute, not simply the "legal" ones.  Perhaps more importantly, there are many opportunities for resolution in the green mediation zone that no one has yet seriously explored because the green zone is not the focus of the legal action.  Only the yellow legal zone is.

Mediation restores the dispute to the people who have it.  They are the only ones who know and understand that dispute in all its detail, texture, dimension and meaning.  Party interests -- their hopes, fears, desires, needs, etc. -- exist in both zones.  The good news of mediation is that the party interests outside the legal zone can often be traded for concessions that are in or out of it. 

When you have only one currency to negotiate with -- dollars -- you often reach impasse.  Why?  Because it seems so unfair to both parties that they should give in, compromise, split the baby in half, etc. just because the cost and aggravation of getting to trial is so high.

When you have more than one currency to negotiate with, however, like dollars and "face" or dollars and unexplored business opportunities or dollars and apology, or dollars and an explanation for the dispute's events that has the ring of truth, you can trump legal impasse with party interests.  

Writing on a Grain of Rice

Vendors who line beach boardwalks or the sidewalks of tourist towns often include the guy who will write your name on a grain of rice.  HERE!!!

Sometimes I feel as if my entire career as a litigator was written on a grain of rice -- that's how small the legal zone sometimes looks from here.  It's O.K., though.  Litigation isn't just a job or even just a career.  It's a calling, this business of rights and remedies, of following a rule of law instead of a strong arm or the snake-oil's charm. 

As the poet Lao Tzu wrote, 

whether a man dispassionately
Sees to the core of life
Or passionately
Sees the surface,
The core and the surface
Are essentially the same,
Words make them seem different
Only to express appearance.
If name be needed, wonder names them both:
From wonder into wonder
Existence opens. 

Biography


Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all types of business torts and contract disputes.  During her two years of full-time neutral practice, she has co-mediated both mandatory and voluntary settlement conferences with Los Angeles Superior Court Judges Alexander Williams, III and Victoria Chaney.  As a result of her work with Judge Chaney in the Complex Court at Central Civil West, Ms. Pynchon has gained significant experience mediating construction defect litigation.  Ms. Pynchon received her J.D., Order of the Coif, from the U.C. Davis School of Law. 



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Website: www.settlenow.com

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