The saying goes that the personal is political. But the inverse is increasingly evident: The political is personal. In our layered worlds of journalism, politics, social media, popular culture, and academia, all manner of debate has effectively become part of the zeitgeist. “Debate” may even be a misnomer. One side sounds off into the abyss—nary a syllable reaching those with deeply held, incompatible convictions across the gaping chasm of positions. The issues, of course, tap into core values and many who sincerely seek to engage often find themselves shut out or shut down.
We have observed these trends from our particular vantage point as mediators and consider, in this column, how some mediation skills may provide opportunities for attorneys who are engaging in difficult conversations to find areas for connection and understanding, if not for agreement. Of note, we write this column with the assistance of a student at the University of Pennsylvania Law School who participated in our Mediation Theory and Skills course and has remarked upon the extent to which these communication-based challenges are prevalent among attorneys-in-training.
Challenging issues are inherently political and, most meaningfully, they are fundamental to one’s personal identity. Thus, the way an individual responds to a specific controversial topic will almost certainly be biased—informed and shaped by their personal history. Conflict has, of course, existed for as long as life itself, but uncooperative, even cynical, partisanship—as opposed to diplomacy marked by engaged discussion—becomes increasingly the norm. And these societal disagreements, in turn, bring more opportunities for conflict to arise on a micro level—between peers, coworkers, and even loved ones.
Although many are able to accept that others disagree with their personal convictions, in historic moments of extreme polarization, intrapersonal communication can come to a standstill as some are more inclined to internalize than to express their perspective. This can lead to roadblocks, misunderstanding and even contentiousness between previously civil parties. In other words, some conflicts are simply too challenging and require facilitated attempts at connection, if not resolution. In high conflict situations, parties may reach impasse—either unable or unwilling to understand the other’s perspective. Experiencing a given conflict as too entrenched, too polarized, and therefore taboo, a reasonable response is to avoid the taboo itself. The consequence: Such avoidance leads to never-ending conflict loops and we understand one another even less.
So, how does this apply to the legal field? At its core, the legal profession operates in an adversarial model. Our profession’s principle effort is to work with dedication to help clients achieve their stated goals. And a component of effective lawyering is anticipating your adversary’s legal theories and posture. As lawyers, we tend to get pulled into our clients’ narratives and pulled by confirmation bias. As mediators, we can take this tunnel vision and work to see the panorama as well.
In a divisive political climate, a concern for lawyers-in-training is that conflict avoidance—manifested as a propensity to “agree to disagree”—may hinder their ability to emerge as effective advocates. How can individuals in the legal field learn to listen to and understand one another, even if they suspect they may never agree? How can they learn to put their personal convictions aside sufficiently while working to strengthen their professional output? And, how can lawyers learn to discuss challenging issues, both with colleagues and with clients?
The skills and values fundamental to mediation can be applied to traditional adversarial legal processes in order to communicate effectively as professionals. The goal is achieving understanding among all parties, even when one’s closely held convictions and identities feel threatened or stifled.
Cooperation and Understanding
An essential component of a mediated resolution to conflict is mutual understanding between the parties.Without the recognition and understanding of one another’s perspective—as opposed to agreementwith such perspective—it is nearly impossible for the parties to reach a satisfactory and lasting agreement.
Understanding in the legal context—between lawyer and client, lawyers on the same team, or opposing counsel—does not require agreement between or among them. Rather, it does require that each participant listens with curiosity, making a sincere effort to learn what informs a given position. Capturing the motivations and values beneath positions provides a basis for expanding possible ideas for resolution of any conflict. In other words, information gleaned from these conversations points to goals and, thereby, options for resolution.
Lawyers can advocate more effectively for their clients—and clients can better understand the legal process impacting them—by way of these interest-based negotiations. Such depth of understanding allows both clients and counsel to prioritize and work creatively to pursue mutually agreeable settlements that better reflect parties’ wants and needs. This applies to conflicts regarding both moral beliefs (e.g., political opinions) and professional ideas (e.g., negotiation/litigation strategies) alike. It also applies to discussions that take place in casual and formal settings.
The mediation skill that best leads to this understanding is reflecting back the person’s perspective to ensure he or she is fully understood. Rather than rebutting or withdrawing in any difficult conversation, allow the other party to be fully heard, and be an attentive and curious listener. Perhaps paradoxically, only when a person is understood might there be fertile ground for compromise because defensive postures and conflict cycles have been softened—the tone changes.
Recognizing Biases and Neutrality
Throughout a mediation process, the mediator serves as a neutral facilitator. Such neutrality is not indifference; rather, it is connection through understanding, with each side. Thus, the mediator does not advocate for either party or have a stake in the outcome, but she does have a stake in the integrity of the process itself. Lawyers, too, can approach communication in this manner, thereby gathering information, understanding their clients more deeply—listening fully while setting aside judgments.
In a similar vein, lawyers on a given team must engage with one another, regardless of perhaps radically divergent worldviews. As conflicting identities and belief systems may be triggered, the common goal of advocating for the client provides a basis for cooperation. Indeed, using mediation skills to more deeply understand the values beneath your co-workers’ perspectives may strengthen the team’s output, testing the durability of positions based upon a diversity of experiences and commonly held biases.
Proceed With Transparency
In any professional context, there are likely to be “elephants in the room.” These are off-limits subjects that everyone is reticent to broach. In mediation, we are transparent about our process and proceed by agreement at every step along the way. These principles translate when having difficult conversations outside of mediation and can be helpful in broaching what may be a subject lurking under the surface, difficult to raise.
In a recent New Yorker magazine article by Margaret Talbot (“Is the Supreme Court in Elena Kagan’s Hands?” Nov. 11, 2019), former Solicitor General Charles Fried tells an anecdote of Associate Justice Elena Kagan speaking at a meeting of the conservative Federalist Society. “Kagan started by saying, “I love the Federalist Society.” [Fried] went on, “She got a rousing standing ovation. And she smiled, put up her hand, and said, ‘You are not my people.’ But she said it with a big smile, and they cheered again. That’s her.”
Justice Kagan addressed head on “the elephant in the room”—her differing jurisprudence. By naming it at the outset, by being transparent, the tension dissipated instantly. With humor, she asserted their stark differences.
Using Justice Kagan as a model, when engaged in conversations with opposing counsel, a lawyer might choose to acknowledge transparently the dynamic and the tensions as a means to shifting to a more a productive working relationship. This manner of transparency and openness, married with understanding of the other’s posture and perspective, are hallmarks of mediation.
Abby Tolchinsky and Ellie Wertheim are partners at Family Mediation. Ashley Kemper, University of Pennsylvania Law School J.D. Candidate, Class of 2021, assisted in the preparation of this article.