The ancient strategies from "The Art of War" by Sun Tzu, have been applied to so many modern activities, including business negotiations, sales, and even litigation practices in the legal world.
The Adversarial System: I Win You Lose
In the context of litigation, perhaps we should rethink our methods. Often litigation devolves into a scorched-earth and zero-sum game, meaning there is only one winner and a whole lot of debris. If war is truly hell, why would anyone want to wage it?
Many participants in the civil litigation system will reflect afterwards about how terrible and draining their legal case was. Those comments often are from the lawyers themselves who are being paid to play in that realm. Imagine what the actual client feels like.
Casualties in the Civil System
To the extent that statistically speaking almost all cases settle, would it not make sense to create an environment for all participants that encourages resolution rather than rancor? An adversarial system in which the participants have a mindset towards waging war only delays an amicable settlement, reduces civility, and endlessly bogs down judicial resources. As a result, the efficiency and confidence in the legal system is challenged, expenses are increased, frustration and dissatisfaction rise, and the mental health and job satisfaction of lawyers decline. Does this sound familiar?
Getting to We
There can be a better way. All it would take would be a change in perspective. Changing the perspective from waging war to waging cooperation and collaboration. If you start from the perspective of trying to understand, cooperate, and collaborate, would you not be in a better position to find a resolution to your case sooner rather than later?
As we currently do things, we go to war first. Beating up the other side, showing them who the real boss is. It should not be surprising when that tact is taken that you are fed the same medicine from your counterpart. When this happens, are you more likely or less likely to want to make a deal with the other side?
Changing the Perspective
I think we have it backwards. You can still cooperate and collaborate from a position of strength. Nothing is being lost by sharing information and trying to understand where the differences really lie. In fact, by doing this, you are becoming more focused so that better and more informed decisions can be made. That is the art of the deal.
Building Rapport to Collaborate
To get there, you need to be mindful of some very basic skills that you already possess. First, your communications should be honest, sincere, and non-judgmental. Second, you should truly listen to the other side and be curious as to what they believe and why. Third, whatever actions you take should be consistent and helpful to acquiring information that will assist everyone to evaluate their case in a fair and open manner. Finally, while doing all of this, employ a little empathy to put yourself in the shoes of your counterpart so you can see their side of the case and why they view it that way. All of these actions will build better rapport, understanding, and ultimately the willingness to collaborate. With this, a foundation has been set for jointly finding an amicable resolution.
No doubt that it takes courage to try this. But we all know that warriors have courage. So I say to you civil litigation warrior, do you have the courage to try? You have nothing to lose since you can always go back to waging war. But war, should be your last resort not the first option.
Less conflict. More resolution.
Miami Florida Mediator