I don’t know about you, but recently I have increasingly realized that the philosophy of conflict resolution that I practice daily as a litigator is an awful template for resolution of conflict with loved ones.[1] While the divorce rate in the United States generally is quite high, it runs higher amongst attorneys. Certainly we must be responsible for not imputing a highly imperfect system of conflict resolution at home, but we are imperfect beings and it takes focus and attention to not impute these modes of conflict resolution to our home lives.
Here are some of the places where the conflict resolution systems fail us at home:
- The Complaint or Indictment
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In both our civil and criminal process, the initiation of a litigated conflict begins with what comprises a list of grievances. Based on the procedural harangues of both a Complaint and Indictment, there is every incentive not to narrow the issues for conflict, but instead be as exhaustive and expansive as possible. You’ll narrow later, and what you fail to plead now you have waived. So the kitchen sink it is! It is my experience that when utilized in one’s home life, this is a disastrous way to begin a discussion with loved ones. If you provide a laundry list of ancillary issues that may arise in the coming discussion, you have necessarily expanded the scope of that “discussion” and instantaneously turned it into an argument. Moreover, the nuance of pleading in the alternative does not work in a real-life argument. Try parrying from “you didn’t tell me that they were coming to dinner” to “even if you told me they were coming to dinner, you failed to provide me sufficient notice they were,” in the midst of a discussion. What makes you an effective lawyer, in this instance, just makes you lying-ass liar.
- ADR
Discussions of Alternative Dispute Resolution as a more effective means of reducing conflict than litigation are legion. Let’s be honest. ADR is effective in limiting litigation. It is not, however, some panacea for the resolution of conflict. It also provides piss-poor means of resolving conflict at home. Several reasons: a) I don’t know about you, but I do not have an effective third-party neutral just hanging around in the basement. And it seems that if you have someone hanging around in your basement, they are highly unlikely to be an effective third-party neutral; b) For similar reasons that a Complaint is an ineffective means of focusing an at-home conflict, the tendency of each party at a mediation to begin from a position that is their best-case scenario ineffectively begins a discussion that seeks to resolve a conflict. Again, ADR resolves litigation, it doesn’t resolve conflict; c) I’ve heard a mediator say that the best negotiated settlements have both parties feeling like they gave up too much. That’s a good result that probably indicates fairness against a backdrop of litigation. If, however, both my wife and I feel like dissatisfied with the end of a conflict, that conflict is certain to rear its ugly head tomorrow, the next day, the day after that…
- Trial
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No matter how well prepared for an at-home discussion conflict argument I feel, when it begins, the benefits of formality found in the courtroom are out the door. Try as I may, I have never been able to impose the rules of evidence at home. Hell, sometimes I’d be satisfied with the Administrative Procedures Act’s less restrictive “type commonly relied upon by reasonably prudent people in the conduct of their affairs” standard. It ain’t happening. When a discussion conflict argument begins, it doesn’t matter whether the content of the conflict is based on hearsay, or if the evidence being offered is unduly repetitious, it’s coming out one way or the other. Perhaps most importantly, however, the person who will decide whether you have properly acquitted yourself in the discussion conflict argument is not someone wearing a robe[2], nor is it a dubiously impartial[3] panel of pets, it’s the very same person with whom you have the conflict.
It is this very important distinguishing factor that means that when I go home I need to — as Yoda would have directed me — unlearn what I have learned. I need to listen to understand rather than respond. I need to ask questions to seek answers rather than cultivate arguments. I need to choose not to dispute virtually everything discussed, but instead hear why they are being discussed. I need to seek resolution through peace and understanding and not victory.
I’m bad at all of these. In this New Year I’m trying to get better.
[1] Of course, because “recently” includes the holidays, which comprise a veritable minefield of potential lifelong irresolvable conflicts, this should come as little surprise.
[2] Well, I mean I suppose it could be, but that robe is far more likely to be accompanied by slippers, and far less likely to have a zipper.
[3] Those little jerks will decide a winner based almost exclusively on who has most recently fed them.
Atticus T. Lynch, Esq. is an attorney in Any Town, Any State, U.S.A. He did not attend a top ten law school. He’s a litigator who’d like to focus on Employment and Municipal Litigation, but the vicissitudes of business cause him to “focus” on anything that comes in the door. He can be reached at [email protected] or on Twitter