From the Mediation Matters Blog of Steve Mehta.
In many mediations, I am often confronted with the question of client control. Does the other lawyer have “client control,” I am often asked. Many times, the lawyer tells me that he or she has no client control. Indeed, in a mediation last week, I experienced a case where the lawyer hadn’t had any client control.
I started to ask myself why was there such a problem with client control issues. I haven’t fully realized the answer to this issue, but I did think about one tool that might help to avoid such a problem. That answer is writing.
Based on my review of some health literature and articles, I found that writing helps to ease the mind. According to Amanda Enayati, a writer for CNN, she found a direct correlation between writing and easing a client’s pain and suffering. She interviewed researcher Dr. James Pennebaker who had been doing a lot of work on this area. Here’s what Ms. Enayati wrote:
“Major stressors in life influence physical health,” said Pennebaker when I reached him by telephone a few days ago. “There is absolutely no doubt that having a serious upheaval in your life is associated with potentially devastating biological changes: increased cardiovascular activity, lowered immune function, an increased risk of heart attacks. What secrets do is turn the pressure up that much more.”
Pennebaker wondered early on what would happen if he brought people into the lab and asked them to reveal the traumas they had kept secret. In his first study, published in 1986, he randomly assigned a group to either write about major upheavals or superficial topics. In the six months that followed, those who had written about trauma visited doctors at much lower rates those who had written about random topics.
In another study in the 1990s of people with AIDS, those who wrote about their diagnosis and how it had affected their lives experienced a beneficial increase in white blood cell counts and a drop in their viral loads.
Study after study bore out Pennebaker’s thesis that putting negative experiences into words seems to have positive physical and psychological effects.
And eventually he began to see nuances in the way writing helps us heal. One was that those people who are able to make a positive slant in their writing — by using words like “love,” “care,” “happy” and “joy” — appear to benefit more than others. “Even if the person is saying ‘no one cares about me’ or ‘I don’t love anyone,’ that still means they’re thinking about a dimension of happiness. It’s better to say you’re not happy than to say you’re sad.”
This concept got me thinking that many times client control is because a person is still suffering emotional distress over the loss that has brought them to litigation. Perhaps, one way of allowing the person to heal, while simultaneously allow the lawyer to do his or her job, would be to ask the client to journal about their loss, pain and suffering.
Not only would this allow the attorney to see what has gone on in his or her client’s life, but it would also give that client an outlet, and would also help to reduce the trauma to that client.
Obviously, there would be a need to protect such communications by the attorney client privilege. However, I feel that such a process might be a great way for the attorneys to help their clients truly heal from the wounds of litigation.
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