From the blog of Nancy Hudgins
I am so pleased to present an interview with Gary Friedman, author of the important new book, Challenging Conflict: Mediation Through Understanding. Gary (on the right) is pictured here with his co-author, Jack Himmelstein.
Q: What is the Understanding Method of conflict resolution that you practice and that you describe in your book?
A: We all, parties and lawyers, tend to be conflict avoiders. In the Understanding Method, we offer people in conflict a way to work together to make decisions by surfacing the conflict in order to understand it. In this method, the mediator offers support, provides a safe place to talk about the underlying issues, and actively works to help the parties themselves find creative and constructive ways to resolve it. Why? Because the people in conflict are in the best position to determine the wisest solution for their dispute.
Q: Why do you believe the Understanding Method of conflict resolution is superior to the caucus-shuttle diplomacy-traditional settlement conference approach?
A: Several reasons, the most important of which is client satisfaction. Remaining in joint session gives clients more control over the outcome and allows them to bring more creativity—theirs, the other side’s and both lawyers’—into the process. By giving their clients a voice and supporting them in finding a solution to their conflict, lawyers can assist them in finding a more optimal resolution, which brings greater client buy-in and satisfaction. With the clients participating so actively in creating the result, there is a much greater likelihood they’ll feel committed to it. The resolution also tends to be final, with no further lawsuits thereafter.
The Understanding Method has a lot of power because it allows the parties to make more choices that reflect what is personally important to them underlying the conflict. It’s never just about the money. The money represents an expression of various underlying interests that, once understood and expressed, can lead to better solutions. By having everyone in the room, we can find out what is really important to both sides. The more information we get about what is beneath the numbers, the fuller the understanding everyone has about the conflict. The law has an important place in mediation, but it doesn’t need to dictate the outcome. Clients can choose to follow the law, but they are also free to choose their own basis for an agreement, which may make more personal sense to them.
Q: What do you see as drawbacks to the caucus-shuttle diplomacy-traditional settlement conference approach?
A: Paradoxically, lawyers, who want to be in control of the settlement process, give up that control to a mediator who shuttles between caucus rooms. Lawyers also give up their clients’ control, as well as the ability to speak, and listen, to the other side. Because they’ve given up control to the mediator, the only way they can influence the process is through strategic maneuvering and applying pressure to the other side. Clients are adults, but the caucus method doesn’t treat them as adults. The downside is that clients feel pushed to settle, many times they regret the process or the result, they hold the lawyers or the legal system responsible, and they feel as if they have received second class justice.
Q: Why do some lawyers seem hesitant to embrace the Understanding Method?
A: It’s harder. Everyone is in the same room. There is more tension. There is emotion. It’s harder on the clients and harder on the lawyers. We call our book, “Challenging Conflict,” because it challenges the relationship to conflict that we all have. Conflict does not have to be about right versus wrong or winning versus losing. The Understanding Method is a way to work through conflict together toward a result that has a fuller resolution. More education is needed, so that lawyers understand the benefits to their clients and learn how they can support and protect their clients at the same time. Hopefully our book helps show the way.
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