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Help With The Hard Stuff: 'Resolve if Possible'

on April 11, 2013 - 9:16am

Help With The Hard Stuff

Part 5 (of 10) –“Resolve if Possible”
By GINI NELSON, JD, MA

I ended my last column asking you to remember William Ury’s “third-sider” motto, “Contain if necessary, resolve if possible, best of all prevent.”

In that column we looked at Prevent, and the three prevention roles Ury identified as Provider, Teacher, and Bridge-Builder.

This week we look at Resolve. Remember, Uri’s strategy is to catch and handle conflict as early and constructively as possible, to limit its escalation and destructiveness.

He quotes Shakespeare: “A little fire is quickly trodden out, which, being suffered, rivers cannot quench.”

Conventionally we think about conflict as being between people with different interests, different rights, and different power. Less conventionally we recognize that conflict occurs between people who are in relationship.

The specific roles Uri identifies for “resolve,” are Mediator (with skills to help reconcile peoples’ different interests); Arbiter (with authority to decide between disputed rights); Equalizer (with the ability to make a more even playing field by equalizing power between the disputants); and -- less conventionally considered -- Healer (with skills to help sooth injuries and help repair injured relationships.)

Mediator – Not all mediations are “successful” if success means getting everything you wanted at the start, or not having to go to court on any issue in dispute. Success, however, most lawyers would agree, is not an all or nothing event.

If you’ve gotten 80 percent of what you wanted without the expense and uncertainty of going in front of a judge, or reduced five contested issues to one that must be taken to a judge, that’s success. Those outcomes are possible with negotiation or mediation, both forms of pre-litigation activities lawyers can help you with. 

A mediating lawyer can help you and “the other side” sit down together, help each side understand what the other is really saying or asking for, and help craft solutions neither side, alone, might have thought of.

A lawyer representing just you can tell you how mediation might be helpful for you, attend mediation with you (if everyone agrees), and review agreements reached in mediation.

Arbiter - Mediation simply doesn’t work for all people or all issues. Someone then may need to play the role of Arbiter, or adjudicator. In social life, that might be a teacher deciding a dispute among quarreling students, a parent deciding on something involving two children, or a manager at work about issues among employees. In civil life, it’s generally the courts systems (there are several kinds.) It’s a good thing these systems exist. While we may hate to find ourselves there, it’s good that we have a place to go where someone has authority to decide an outcome when we cannot otherwise work it out. Consider the alternatives, such as denial, victimization, or vigilante behavior. A lawyer can be an arbiter if parties are doing “arbitration” (it’s like a private court system with binding decisions) instead of going to a formal court. A lawyer can advise you of arbitration as an option, and represent you in it, too.

Equalizer - The goal here is too help the weaker person come to be heard by the stronger person. The powerful often will not negotiate with the weak unless power has been equalized in some way. To me, this is one of the biggest ways a lawyer can help you with the hard stuff.  Many believe, as do I, that “knowledge is power.” A lawyer can advise you of your rights, and explain the process and rules of how to assert or defend them, possible strategies to use, and the benefits and risks of all your options. With that knowledge you have done due diligence and can make better decisions about what to do next, and how to do it.

Healer – Warning: “Don’t do this at home.” Attorneys can find themselves in quasi-psychological counselor-like roles if they are not careful. Unless independently licensed, a lawyer is not a psychological counselor, and both the lawyer and the client sometimes forget this. In conflict, strong emotions are often deeply and unconsciously involved. I’ll talk more about this in a later column. For now, recognize that the lawyer in both objective and subtle ways can help you with psychological injury and injured relationships. In conflict psychological walls of suspicion and hostility commonly exist. A lawyer as healer can help break through that wall and permit trust to be built. They can do this by helping define concrete, demonstrable actions the other can take. Verifiable compliance can lead to verified compliance. Also, the simplest way a lawyer can help heal is to simply listen to you, hear you accurately, and acknowledge the experience you are having (without inflaming the situation.) This is especially important where children are involved, such as in divorce.

Next column: within Uri’s Contain, Witness, Referee, and Peacekeeper. But also, a more practical reality of a common hybrid of roles not explicitly discussed by Uri for both equalization and containment. I’ll talk about this hybrid especially in the context of “Divorce Wars.”

Here’s the link to #1, Legal Process is All about Negotiation

Here’s the link to #2, Lawyers are Human, Too

Here’s the link to #3, Lawyers Can Be Quite Versatile

Here’s the link to #4, Best of all Prevent

Editor's note: Look for "Help With The Hard Stuff" every second and fourth Thursday of the month in the Los Alamos Daily Post.

Gini Nelson, JD, MA has been practicing law since 1983. She’s a member of the State Bar of New Mexico’s Law Practice Management Committee, and the State of New Mexico’s First Judicial District Court’s Access to Justice Committee. Views expressed in the column are hers and not necessarily those of these Committees. This column is providing public information through the auspices of the Los Alamos Daily Post at www.ladailypost.comand is not providing legal advice. Nothing in this column is intended to be an advertisement or solicitation of business. Ms. Nelson’s law office website is at www.gininelson.com. If you have questions that might be of general interest if answered in this column, please send them to column@gininelson.com. ©2013 Gini Nelson Law Office

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