Looking for Resolution? Leave Your Guns and Knives in Your Car

            In Kansas City on the north side of the river, there is a small “dive bar” surrounded by towering trees and a neighborhood that has resisted gentrification. On weekends, blues music pours out of the barred windows and the open, heavy, weathered wood door that faced the dirt parking lot. Above the door is a hand-hewed and painted sign:

Leave Your Guns and Knives in Your Car

And implied by the size of the Bouncer at the door is: “No exceptions.”

           The sign came to mind after several mediations in which there were cringe-worthy name-calling and insults, hurled like bullets, knives, swords, and arrows. Each word was punctuated with angry intonations, credible disgust, and particular offense.  In the bubble above my head, I noted how social media has encouraged such disparagement by becoming a place that spreads the diseases of cyber bullying, rudeness, crude language, and abusive rhetoric.

           Sadly, no one appears to be immune from this plague, but we wouldn’t expect a sign like, “Leave Your Guns and Knives in Your Car” when assembling for a mediation. After all, lawyers are supposed set the example of civility and decorum in all proceedings legal and advise their clients accordingly.           

           And yet, without thinking, participants often bring weapons to conflict resolution—taking aim with their tongues, hurling pointed, piercing, penetrating, and pain-inducing words. Once lifted in the wind like feathers from an opened pillow, there is no rewind or auto-correct to undo or gather in the insults and epithets once they’ve been released.

           Consider a recent case in which two neighbors disputed a property line. In another case, a visitor to a museum was briefly questioned by security guards when he appeared to be out-of-place and possibly lost.

           In the property line dispute, one neighbor was frequently recorded by a security camera calling the other neighbor—who is deaf—a “moron” and “stupid”. I could not help but feel sympathy and compassion for the disabled neighbor, who simply wanted to erect a fence for the family's service dogs.

           In the case of the museum visitor, the attorneys described the museum and its personnel as systemically perpetuating racist practices and racist policies so often during the mediation that I began to feel that I too must be “racist” because I understood the reasons for the museum staff's vigilance at the security vestibule. 

            Did the neighbor and the museum visitor’s attorneys really believe that their “guns and knives”, e.g., their words, were persuasive and solution oriented? Their words were provocative, to be sure, but . . . .

           So, I offer three lessons from these experiences:

• choose your words wisely,
• learn to listen well, and
• be the professional you aspire to be. 

Hold Your Words in Check. 

           Exchanging the “the fight” for agreement starts with consciously leaving “guns and knives in your car” or at the meeting room door. Words may not cause the physical harm of a gun or a knife, but the wisdom of the ages clearly explains the devastating consequences of ill-chosen or intentionally harsh, angry, or demeaning words. 

           One Chinese proverb[1] says: 

The tongue, like a sharp knife...kills without drawing blood. 

Another observes: 

Wisdom is attained by learning when to hold one's tongue. 

           Likewise, in the same historical timeframe Jewish King Solomon wrote:

The words of the reckless pierce like swords, but the tongue of the wise brings healing.[2] ... The one who has knowledge uses words with restraint, and whoever has understanding is even-tempered. Even fools are thought wise if they keep silent, and discerning if they hold their tongues.[3] 

           In other words, a well-sharpened tongue should be left with the other weapons—in the car, at the door, or anywhere else but the meeting room. Intentionally keep name-calling and insults out of settlement conversations, especially in mediation. 

           When counsel and parties resort to name-calling in order to make points in discovery, motions, and at trial, they often experience polarization that undermines conflict resolution. Continuing verbal and non-verbal insults in mediation, where a problem-solving mindset is necessary to reach agreement, may reveal a lack of investment in the settlement process and the contrary desire to continue the conflict.

Listen to the Other Persons' Points-of-View.

           Listening is an art that takes effort. To see the conflict from the perspective or view point of another party requires thought, not just lip service or a “so you say” attitude. Listening means, instead of labeling parties and their actions, motives, expressions, and statements, that you put yourself in the other party’s place for a time and listen to understand their perspective in the conflict.

           Listening means taking a sincere look through the lens of the other party to see what they value, understand what they believe, and acknowledge their interests. Lawyers, in their roles as counselors and problem solvers, need to master the art of listening—to their clients and to their opponents. They and their clients should “be quick to hear”, “slow to speak”, and even slower to become angry. Consider this: A conflict, after all, is simply another problem wanting a solution.

           Like the fool who “takes no pleasure in understanding, but only in expressing his opinion”[4] when parties become entrenched in their own views and cannot see the conflict from an opponent’s perspective, their one-sidedness becomes the impasse to reaching an agreement or solution. The reason for such standoffs is because conflict is personal and emotional at its core—it challenges one’s values, beliefs, and interests. 

           To illustrate the distinctions: a breach of contract may be of greater financial value to one party than the other party's interest in performance of the contract; a security guard’s request for identification may be perceived as a challenge to one’s belief system or ethnicity instead of an interest in every visitor’s safety; and a fence may morph into a threat to an interest in a stand of shrubs instead of demonstrating the value of safety and respect for the community by keeping the services dogs on their own property.

           When parties or their lawyers focus on hurts and offenses, a personal or emotional desire to vilify, humiliate, or punish the other party in court can take over and resultant name-calling and insults become, if nothing else, rather unbecoming. Instead, parties’ and their lawyers’ efforts should focus, instead, on understanding the values, beliefs, and interests that both sides care about in the efforts to find agreement.

Keep it Professional.

           The practice of law is a noble profession and its practitioners are charged with helping to heal the broken relationships, promises, and lives of those they represent. The education and experience lawyers bring to a conversation should be engaged to foster resolution, not to intensify or provoke conflict. In addition to the American Bar Association (ABA) Model Rules of Professional Conduct[5] that address lawyer conduct in conflict resolution, the ABA Guidelines for Litigation Conduct encourage lawyers to demonstrate respect for other counsel, other parties, and the court. To this point, Justice Anthony M. Kennedy said:

Civility is the mark of an accomplished and superb professional, but it is more even than this. It is an end in itself. Civility has deep roots in the idea of respect for the individual.

In Closing . . .

           Remember, words matter. They can help and bring healing or they can harm and drive parties further apart. Rarely, can what we say be taken back or forgotten.

           For greater success and better results in mediation and other conflict resolution efforts, use restraint and civility in what is said and the words chosen. Make the effort to cultivate the art of listening well. And ,be professional at all times. 

[1] Many Chinese and similar Asian proverbs are believed to be the result of thousands of years of “oral culture” of the common or peasant people between 1000 and 200 B.C.

[2] See Proverbs 12:18 (NIV).

[3] See Proverbs 17:27-28 (NIV).

[4] See Proverbs 18:2 (NIV).

[5] Future Blog Posts will highlight the ABA Model Rules of Professional Conduct that apply to mediation.