Negotiating With Feeling One More Time

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Helping law students master the skills necessary to mediate civil harassment cases last week put me in mind of two recent items — the e-Discovery Dystopia video posted over at Commercial ADR ( The Horror, The Horror); and, Jared Lanier’s new book, You Are Not a Gadget:  a Manifesto excerpted this month in Harper’s.

The Dystopia of e-Discovery lies at the bottom of the slippery slope created by the internet information avalanche as it intersects with loose rules for discovery (“reasonably calculated to lead to the discovery of admissible evidence”) crafted when a few Bekins boxes of documents might relate to the subject matter of the action – a time before I personally became engaged in litigation involving millions of documents that were reviewed by associates and paralegals for at least a year before being shipped to the Philipines for coding by date, subject matter, author and recipient and then uploaded to a data base (the mid-90s).

You Are Not a Gadget (as you’ll see below) refers to the international “project” of reducing qualities (primarily personality and desire) to quantities for the ultimate purpose of selling one another goods and services.  The reductive dimensions of this on-going process struck me as the way in which we are now training law students to “handle” the “facts” to which they’ll “apply the law” as if they were going to spend their professional lives taking and re-taking the Bar Exam rather than helping their clients secure a relatively predictable future (the transactional lawyers) or resolve conflict without the bitter aftertaste of injustice in their mouths (litigators).

Those are the thoughts that were occupying me when I visited a local law school mediation clinic to guide a hypothetical mediation of a civil harassment action in which one or both of the parties were seeking restraining orders. I found the exercise slightly distressing.  After a year and a half of law school, the student mediator was already busily suppressing and avoiding conflict, pushing back against the parties’ attempts to tell their  conflict story — one sufficiently emotional that they were willing to ask a Judge to enter an Order that would make either or both of them subject to arrest by the Los Angeles Police if violated.

Pause for a moment here to imagine the force of the anger and fear that would bring people to such a pass.

What distressed me was the degree of subtle coercion exercised by the student mediator to “move past” the past and “focus” on the future.  Because the students’ “purpose” in the Los Angeles Superior Court is to help the Judge avoid making a decision (charitably called “clearing the calendar”) their efforts were focused on achieving an a restraining agreement rather than a restraining order or, alternatively, negotiating an agreement that included a stipulated restraining order.

The students did attempt to negotiate a “deal” that would resolve disputes outside the Court’s jurisdiction (loans of money; theft; a dispute over the terms of one party’s sub-tenancy; and, recompense for the physical violence at the heart of the request for the restraining order).  Their efforts to do so were, however, repeatedly derailed by the parties’ attempt to justify their own behavior; and, blame the other for causing the losses sustained.

Unable to obtain compliance with the admonitions to bury the past and focus on the future within the first few minutes of the hypothetical mediation, the student mediator suggested that the remainder of the mediation proceed in separate caucus.  I bit my tongue until the first separate caucus ended with one party making a “demand” that was better than he actually desired so that he would have “bargaining room.” At that point, I interrupted the session; brought the other party in from out of the cold and asked the student mediator what she is trying to achieve.

Mediator “I’m trying to help them negotiate an agreement.”

Me: “Did you think it was necessary to separate the parties to help them reach an agreement?”

Mediator: “Yes.”

Me: “Why?”

Mediator: Because they’re too emotional to think clearly. We’ve been told to get the parties to put the past behind them and instead focus on the future.”

Me (to Respondent): “Are you able to discuss the resolution of this dispute unaffected by the past?”

Respondent: “No.”

Me: “Why?”

Respondent: “Because I’m right and he’s lying.”

Me (to Mediator): “Do you think you can help Respondent resolve this issue in separate caucus?”

Mediator: “I don’t know.”

Me (to Petitioner): “Do you think you can resolve the dispute you have with Respondent without referring to the past?”

Petitioner: “No way. You’ve seen just now what a liar he is; and I had to pay doctors for injuries he caused when he attacked me. I’m thinking of hiring a lawyer to sue him . . . .”

Me (to parties): “Is the past interfering with your ability to resolve these issues here and now in the present?

The Parties: “Yes.

I tell the students that the word “counselor” is not simply an honorific; that it is descriptive of their job as lawyers – to counsel their clients on the many ways in which they might resolve their disputes with others – including litigation, arbitration, and mediation. Though they won’t be mediating legal disputes in the near future (other than as volunteers) they will be representing their clients in mediations and instructing them how to best utilize the skills of the mediator to resolve the dispute without litigation (or without more litigation).

“But we’re not trained to be counselors,” the students protest.

And they are, unfortunately, absolutely right. A little more than a year ago, before they first stepped foot in law school, they would have intuitively known how to handle this entirely human and extremely familiar situation. Third graders in peer mediation tournaments display more facility at helping the parties take responsibility for the part they played in the dispute that brought them to mediation; open up rational lines of communication; encourage joint problem solving; and, reach agreement. They do not, however, do so by urging their school mates to “put the past behind them” and “negotiate” a “deal” to resolve their dispute.

(I do not mean to disrespect law students here.  They are being compliant with what they are being taught to do, as I’ll expand on toward the end of this post)

I take a few minutes to model effective joint session mediation (as we do when we teach for NITA) by:

1. reminding the parties they were once friends;
2. asking them to talk to one another about how they first became friends;
3. asking them to describe to one another the first time they each began to feel that the friendship was slipping away;
4. asking them to take a sober look back at the physical altercation at issue in the civil harassment proceeding and tell one another what they believe they might have been able to do to resolve the problem at that time in discussion rather than in a physical fight; and,
5. after congratulating them for having the courage and honesty to “take their own part” in the dispute, asking whether they could muster up both the courage and the honesty necessary to brainstorm potential solutions to their mutual problem in a joint session with the assistance of the mediator.

They (still somewhat reluctantly but also a bit sheepishly) said that they would make the effort even though they were  not optimistic about their ability to achieve resolution. Then I turned the mediation back to the student mediator, who quickly obtained an admission from the Petitioner that, despite his earlier denials, he had borrowed $5,000 from the Respondent, only part of which he had paid back, which reflexively led to the Respondent acknowledging something he had done that he had earlier denied.

The parties were not nearing agreement, but were on the right track when time was called.

Afterwards, one of the student participants said to me, in genuinely shocked tones, that he had felt remorse even though it was only a hypothetical. “How could that happen?” he asked. “You lied about the money,” I responded,

and you will have a human response in a human communication even if you’re only role playing. We can’t help it. Humans are incapable of being unemotional. The key to resolving emotional disagreements in mediation is for the mediator to help the parties lower the level of emotion to the point where the parties can discuss their differences rationally. Anger, anxiety, fear and the like interfere with our ability to think clearly. We can’t pretend not to feel an emotion in response to someone who has hurt, injured, or even simply disrespected us. Nor can we “get past it” by suppressing or avoiding it. We can only “get past it” by communicating with the person who caused us the harm, while at the same time taking responsibility for our part in how the dispute went down in the first place.

What does this experience have to do with the future e-Discovery Dystopia in which artificial intelligence “handles” the “facts,” to which lawyers “apply” the law? 

First, there are no “facts” – only differing subjective experiences of the same event or series of events which the parties may or may not be able to reconcile or harmonize. If the parties continue to disagree about “what happened” they are usually able to accept the possibility that the basis of their disagreement is miscommunication rather than the other’s wrongful (even evil) intent. All of which takes us back to the flawed notion that disputes involve “facts” unmoored from “feelings” that could be unearthed and organized by an algorithm to which lawyers would apply “the law” which is divorced from the parties’ desire for “justice” – a fair result based upon a fair procedure.

But we do not have to imagine a sci-fi future to test the ability of present-day artificial intelligence (the Holy Algorithm) to “get the facts right.” All we need do is take a look at how the Holy Algorithm has done in achieving economic stability over the past few years.

As author Jaron Lanier wrote in You Are Not a Gadget,

In finance, the rise of computer-assisted hedge funds and similar operations has turned capitalism into a search engine. You tend the engine in the computing cloud and it searches for money. In the past, an investor had to be able to understand at least something about what an investment would actually accomplish. No longer. There are now so many layers of abstraction between the elite investor and actual events that he no longer has any concept of what is actually being done as a result of his investments. * * * The Facebook Kid and the Cloud Lord are serf and king of the new order. In each case, human creativity and understanding are treated as worthless. Instead, one trusts in the crowd, in the algorithms that remove the risks of creativity in ways too sophisticated for any mere person to understand. * * * Personal reductionism has always been present in information systems. You have to declare your status in reductive ways when you file a tax return. Most people are aware of the difference between reality and database entries when they file taxes, yet you perform the same kind of self-reduction in order to create a profile on a social-networking site. You fill in the data: profession, relationship status, and location. In this case digital reduction becomes a causal element, mediating between new friends with whom most information is exchanged online. That is new.

The law is also “personally reductive” – creating causes of action into which lawyers must first pick and choose the “relevant” facts satisfying the “elements” of the cause or count. We fill in the data constituting the legal claim and the factual reduction becomes a causal element, determining which disputes can be legally resolved with an award of damages (or other legal remedy) and which cannot.

Mid-way through our law school studies, we have forgotten the difference between reality and these legal “database entries,” the purpose of which is to eliminate emotion from the delivery of “justice.” No matter how “abstract and impenetrable” we make our “justice products”; no matter the effort we make to separate fictionally “objective” “facts” from hypothetically rational “law,” we will never be able to “separate the people from the problem.” Nor, thankfully, are we capable of escaping that which most strongly unites us – our very fallible, subjective humanity.

So let’s please teach our law students something about the psychology of conflict, particularly how it arises and how it might be profitably diminished rather than avoided or suppressed. They will, after all, be toiling in the hot cauldron of conflict for the next thirty to forty years. Their ability to “handle” the “facts,” suffused as they are with human emotion, will determine the success or failure of the legal project as well as the happiness and well-being of its practitioners.