Dispute Settlement Counsel by Michael Zeytoonian.
Over the last month or so, I’ve been struck by several situations in which one party to a conversation or discussion obviously was listening to what was being said, but it was equally obvious that the listener wasn’t really hearing what was being said. I have a couple of theories for why, but it’s often because somewhere early on in the exercise of hearing, the listening party stops listening and starts formulating his response in his mind. Once that happens, any chance of allowing what was heard to actually be thought about or to simmer in the listener’s mind for a few minutes or more is gone. Dead on arrival. What was heard was not at all processed and wasn’t thought about beyond what and how to respond.
This is even more true in online communications because we can’t observe the body language, hear the tone of voice or the speed of the words being spoken and the intonations of the speaker. If the majority of communications is non-verbal, the online listener, reduced to reader, is already at a huge disadvantage in his ability to really hear and understand what is being conveyed to him.
As lawyers, we are particularly guilty and susceptible to this shortcoming, because of our training and experience. We are trained to do analysis, to look at a situation, an argument or a position and start to break it down, assess it, think about how to respond to it and ultimately negate it, weaken it or defeat it. Any chance of really hearing what is being expressed is slim unless we are disciplined or trained in active listening, probably the most important element in the training of mediators or collaborative lawyers.
Further, because our clients are indoctrinated by society and TV to expect us to be adversarial, any sign that we are actually listening to and taking time to think about or consider what the other side has communicated will be viewed by our clients as weakness, or not zealous representation on our part. When a lawyer actually gives pause and ponders the other side’s argument or view for a moment, or even reframes it in a way that acknowledges it, it’s not unusual for a client to question whether the lawyer is on his side. “You’re supposed to be fighting for me. Why are you accepting anything the other side is saying?” may be a typical reaction. It’s really not the client’s fault; that is what they have learned growing up in a litigious society in which the only two responsive options are fight or flight.
But fight or flight is what got the parties to this point in the dispute. Their inability to seek out or consider the “Third Way” of Eastern thought, or the better way hinders their ability to solve the problem. The challenge for the lawyer is whether the lawyer will simply be a better mouthpiece and hired gun for my way or your way, or help the clients seek out a better way, a collaboration of the best elements of way #1 and way #2. It calls on us and our clients to ask what the goal is: To win at all costs, or to come up with something that puts both parties in a better place than the situation that led them to the dispute?
But the lawyer, and the parties, cannot do that unless they can first be good listeners. If someone does not first listen to the other side, really hear them and understand them, then everyone is handicapped at finding the best resolution. At the end of The Simple Prayer of St. Francis of Assisi, there a hint of what is needed: “Let me first seek to understand, rather than to be understood.” If we don’t really hear the other side and understand their interests and needs, we are limited in our ability to do good dispute resolution.
So before we can even think about coming up with a great resolution to a dispute or a solution to a problem, we must first be willing and able to really listen to, hear and understand the other person’s point of view.
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