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<xTITLE>Advocacy and the Pursuit of Interests, Without the Fighting</xTITLE>

Advocacy and the Pursuit of Interests, Without the Fighting

by Michael A. Zeytoonian
May 2011

From Michael Zeytoonian's Dispute Settlement Counsel Blog

Michael A.  Zeytoonian

A dispute was swirling around a man and his followers who were promoting an alternative way of living, different from the norms of their time. The man had just been betrayed by one of his insiders and the dispute was about to come to a head. As authorities came to arrest him, a physical confrontation between sides broke out, but was quickly diffused by the man’s unconventional intervention between the parties. Before it could escalate, the man not only stopped the fighting, but reached out and healed someone on the other side.

The confrontations in the Garden of Gethsemane offer a classic modeling of non-adversarial dispute resolution. While rooted in Christian spirituality, the events have a universal message: It is possible for one to be zealous in holding his position or defending a right, continue to be an advocate for one view and stay the course with respect to pursuing one’s interests and goals, without taking up the fight. And in the process, one may not only be able to treat those on the other side with respect, but do some healing.We can fully engage in advocacy without engaging in an adversarial approach. It sounds counter-intuitive, but when you think about it, the most clearheaded advocacy comes when the advocates are not shackled by a narrow focus on winning a positional battle. When a dispute arises, we have choices to make, and the initial decisions are critical, yet they are often made without enough thought about the options. Do we immediately pull out our swords, take positions and do battle, seeking to win no matter what the cost?

There is another option – one that allows us to be an advocate for our belief and work to satisfy our interests, without declaring war but staying grounded and centered. It is a natural instinct, perhaps, to declare war, to want vengeance, especially when we have been betrayed or wronged, and “have our day in court.” But is it the best way? Can legal counselors serve their clients in a dispute and continue to be advocates without drawing swords? Can parties work to have their interests met without fighting? Can lawyers and clients collaborate from the outset of the dispute on problem solving? Yes, we can.

When one of his followers, Peter, drew a sword and attacked, Jesus stopped that approach. He did what all great dispute resolution masters do; he changed the conversation. “No more of this,” he said, telling his own side to “Put your sword back in its sheath.” This game changer resulted in all swords being put away and revised the rules of engagement.

The rest of the Gethsemane narrative tells us that Jesus did not cave in and accept the other side’s position. And despite the strong temptation to do so, he did not take the bait and get adversarial. He continued to acknowledge the interests of both sides. He also recognized that he could address the needs of the other side without undermining any of the interests of his side. Knowing that and staying grounded, he moved toward the opponent who had been injured and healed the wound.

An approach like this changes the equation and pulls the rug out from under the battlefield. It reminds both sides that, despite their differences, they share some common ground, are connected in their humanity and in the course of events that shape their situation. Further, this approach acknowledges the legitimacy of the other person’s needs and that often, those needs can be met without sacrificing any of our own interests.

In this way, our purpose is not to abolish the law, but to fulfill it.


Michael A. Zeytoonian is the Founding Member and Director of Dispute Resolution Counsel, LLC and is a lawyer, mediator and ombudsman. He is formerly a partner and now Of Counsel at Hutchings, Barsamian, Mandelcorn & Zeytoonian, LLP, in Wellesley Hills, MA. He specializes in employment law, business law, special education law, mediation, collaborative law and administrative law. He is admitted to practice in the state and federal district courts of Massachusetts and New York (Southern District) and the state of Connecticut. He has served as a mediator on the MWI panel in the district courts and on the BBA panel in the Boston Municipal Court.

He is a member and Massachusetts Bar Association and is chair of the MBA’s ADR committee and a member of the labor/employment section. He is a Past President (2006-2007) and member of the Massachusetts Collaborative Law Council, the International Academy of Collaborative Professionals and the New England Association for Conflict Resolution. He writes frequently on collaborative law and alternative dispute resolution (ADR) and has trained lawyers and presented in collaborative law and ADR around the U.S., Canada and Ireland. He has lectured at Northeastern University School of Law, Suffolk University School of Law, New England Law Boston, UMASS School of Law and Roger Williams University School of Law.

He served as Assistant Attorney General in the Office of the Attorney General of the State of New York, as a deputy overseeing litigation in the State Counsel Bureau in Westchester, Rockland and Putnam Counties and working on consumer advocacy cases. Prior to his work at the Attorney General’s Office, he was an Assistant County Attorney in the Westchester County (NY) Law Department, in the litigation and family court bureaus. His litigation work at both the County Law Department and the Attorney General’s office included cases in employment; labor; state, county and local municipal matters; environmental law; construction, administrative and tort law, and the prosecution of child abuse and neglect cases. His undergraduate education was at Boston College and Iona College, where he received his Bachelor of Arts degree is history and education. He earned his J. D. from Pace University School of Law with a Certificate in Environmental Law in 1990.

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