Closure represents the triumph of reality over illusion; recognition that
things are the way they are, not the way we wish them to be.
“A man has got to know his limitations.” Clint Eastwood, Magnum Force
Settlement is a peace treaty declared on agreed terms, in which rationality
trumps expectation, calculation succeeds emotion, and the cessation of
conflict frees parties to go their separate ways.
Reconciliation is different from a peace treaty, and harder to achieve. It represents a collaborative harmonization of emotional needs and perceived realities, where the parties want or need to continue living in relationship with one another.
It can happen with large conflagrations as well as our daily bread and
butter disputes. Europe has been the cockpit of war for a thousand
years. Yet today, twenty-five European nations
with different languages, histories, and economies have achieved gradual
reconciliation, so that today a general European war is not
conceivable. Neither can we conceive of Ohio attacking Tennessee, or Texas
taking a swipe at Kansas. Reconciliation is possible.
Without war we would have no word for peace, without peace no word for war; they form a dichotomy. The classical Greek word for “the natural state of things” was stasis, from which we derive the word static, but which to them meant perpetual conflict.
Some litigators are quite withering about mediation: “I try my cases,” they boast, a variation on the theme “real men don’t eat quiche.” The reality is that these “real men” do settle their cases 96% of the time. The task of the mediator is a little more complicated than simply asking: “Can’t we all just get along?”
The mediator has the task of maintaining the process between the parties, whether the goal is settlement or reconciliation, through convening, opening, communicating, negotiating, until the final step, which is closure.
It will be found that parties often negotiate to a short distance apart, but the final step each side has to make proves elusive. They are like horses that gallop towards the finish line but refuse to cross – as far as mediation is concerned, this is a moment when the whole process may blow up. Here’s where the mediator earns her keep.
At this final stage, emotion may again surge up, and the impulses of the ego thrust themselves forward. With only a small concession needed to achieve resolution, the desire to win, to score a victory over the opponent, to stick it to the other side, to achieve a tiny measure of revenge, reasserts itself.
How is a mediator to proceed? Some mediators talk about the dignity of being able to say “No” and walk away. Others take the view that the dignity of saying “No” is an insufficient reward to exchange for the benefits of achieving resolution. Such mediators see, in their mind’s eye, the parties as having entered the room with a great burden upon their backs, or a ball and chain around their ankle that with just a little more effort can be removed. Even if the parties, having settled, walk out of the room with some reluctance, which is called buyer’s or seller’s remorse, the buyer wondering if he took too little, the seller wondering if he paid too much, the contest is over. The reason the parties chose mediation in the first place was to achieve that cessation. It is not just a matter of money, and certainly not a matter of ego. There is all the time and stress, and waste of energy and resources, tied up in a dispute, so that the benefit the parties receive in the form of “getting their lives back” is a very important consideration.
“You’ve got to know when to hold ’em, know when to fold ’em.” Kenny Rogers
I've said this before. "I don't take it personally" is the biggest lie in the legal business. Well, that and "it's only about money" which is pretty much the same...By Victoria Pynchon