-- William Plomer
"She sure is creative."
"He sure is defensive."
Which would you prefer to be the subject of?
All of us pride ourselves in being creative, whether artistically or professionally. To be defensive, on the other hand, implies weakness or, if you will, a lack of aggressiveness.
As practicing attorneys, we prosecute or defend claims, and, in that limited context, to be defensive may carry a very different connotation. However, in the context of a settlement negotiation, or in a mediation, defensiveness suggests an arbitrary or obstinate frame of mind, an attitude connoting a lack of cooperation and an unwillingness to negotiate with an open mind - a sure-fire road to failure.
Mediators are trained to spot areas for creativity, while remaining neutral and unbiased. Legal advocates often have trouble with this concept, because they believe their objective is to win at any cost. In truth, creativity is a talent available to all legal practitioners and should be utilized a lot more than it ordinarily is.
I have honestly been stuck at times to devise a means of breaking a logjam in a mediated negotiation, when, suddenly, the attorney on one side or the other sugctional device available to the mediator as well as both sides of a legal dispute, and it should not be ignored.
Just as an artist creates an original painting or sculpture that communicates a unique message to its viewers, attorneys by their very professional training have the talent to be creative, especially in the course of a settlement negotiation. Use that creativity. Use it to the advantage of your client. Use it to avoid the costly, time-consuming, stressful and uncertain outcome of a trial. "Exercise the power to connect the seemingly unconnected."