Mediation Minute

The Uniqueness of Litigators and the Light Born of Mediation

February 3, 2023

I was thinking about my mediation clients, meaning the lawyers, and how the litigator’s role differs from other professions. Litigators are in conflict every day, every moment, for their entire careers. Can you identify another job that at its core involves conflict? The job ends when the conflict ends. The job depends upon antagonists, a dispute, fighting a series of small battles possibly leading to the largest, trial.

Along the way, the task of helping the client means creating a self-serving story,  discrediting the other side’s narrative, tarnishing the witnesses against us, and on the defense side attempting to prevent any narrative from being told.  What other civilian job no matter how hard begins with a known adversary?[1]  Our task begins with a  need to defeat, dominate, stifle, or force one to capitulate to terms.  For me this is an important, albeit belatedly, seized upon truth.

Some might say that all businesses sweat and battle competitors. The difference being that this conflict is inherently beneficial to the public and the companies competing: Innovation begets better products and services, better prices, efficiencies in the marketplace, and is a fight for the future. Litigators fight over what has already occurred attempting to frame past events in a highly structured and expensive positional debate.

A Piece of Heresy Perhaps

I was thinking, at first half-jokingly, then not, admittedly bordering on heresy, that the only other comparable profession is the pastor, rabbi, imam, or clergyman. They are in an unending fight with evil, the devil, sin, or whatever other spiritual antagonist exists within that faith. But that conflict is existentially different because the battle fought by the clergy for the congregation members is essentially vicarious and spiritual or metaphysical and grounded in faith not factual and financial disputes.  So, ponder the uniqueness of the litigator’s role in the professional world for a moment.

After 30 years a litigator, the job requirements are clear. It requires a hard spine, a tough or calloused skin, hard thinking, hard times away from home, and the hardest is the emotional tax incurred navigating often in a sea of grief, injury, conflict, abuse, deceit, lack of control and with increasing frequency, personal attacks. Further still, your daily practice and success is determined in some measure by a judge or jury with no stake in the outcome. So being a litigator is a not just hard but hardening. I am mindful of the quip, “How come nobody ever buys a lawyer a drink? Answer: Because it’s included in the hourly rate.”  Also included in the rate are the emotional and physical tolls to be paid along the way.

Save the Story for Others

I hope you save this piece for when you are tasked with trying to explain to lay persons how so very different your job is from others and the mental and physical burden of traveling across the thorny terrain of conflict known as litigation and trial practice.

Here is the big reveal: Why do I write monthly and speak frequently on mediation training, preparation,  and mediation advocacy? Why do I discuss ways to avoid impasse and achieve settlement?  Why am I  such a vocal proponent of mediation as a dispute resolution mechanism?  Because at the end of the day when the settlement is imminent, the swords are sheathed, we are all witness to the brighter side of everyone and enjoy peace and calm, if only for a brief while.  The lawyer who resolves a case at mediation has helped heal the client.  Yet, you and I know that to sustain, the knight-litigator’s charge compels him or her to soon tilt, once again, in the direction of a newfound foe.

[1] Emphasis on civilian, purposefully excluding military personnel, and I don’t count professional athletes, as their role is tantamount to performers.