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Brown: Can the gladiator make peace?

October 7, 2015

By Michael E. Brown

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In his first inaugural address, Richard Nixon said, “The greatest honor history can bestow is the title of peacemaker.” I find it astounding, as a child of the Watergate era, that I would find myself quoting Richard Nixon. It’s evermore ironic that the American president who most embodied a pugilistic and adversarial approach to politics, at least so far, began with such a hopeful declaration.

Still, it is the concept of the peacemaker that so clearly expresses the role of the mediator. In our litigious society, where no affront seemingly goes without remedy, close questions dominate many disputes and awaiting the final answer can be perilous indeed. When the law is being stretched or bent to fit in a battle of ideas, not only are the vagaries of judges and juries in play but those with the ultimate authority as well, at least ultimate for most of us.

It is this philosophizing that led me to seek official sanction as a trained peacemaker from the Indiana Commission for Continuing Legal Education. I thought certain my certificate, though duly signed by the Lord of Mediation himself, Tom Lemon, would surely have the image of the dove or the plowshare, the courthouse at Appomattox or the USS Missouri. Alas, it says simply “Mediator.” But that is its significance, for I have always believed, no matter how important or trivial the matter or the specific role one plays, the practice of law is the means by which disputes are resolved without violence, without rancor – or at least undue rancor – and without destructive outcomes. The law serves as a peaceful means to the end of disputes which in earlier days bent to the will of the mighty. Think the law books versus the gunfighter in “The Man Who Shot Liberty Valance.”

A noble undertaking indeed, but how does one shift from the role of gladiator to become the peacemaker? Aren’t they very different roles? Advocates, as gladiators, set out to paint a mural that shows the legitimacy and righteousness of their client’s cause, to create an image so clear and precise that no factfinder can resist its powerful and persuasive message. The mediator, on the other hand, comes to this process in a more traditional way. After all, when we paint a room, don’t we work the corners, tape the trim and make an effort to stay in the lines around the windows and the doors before filling in the great expanse before us? It is this tweaking the details and exploring the angles from both sides, while certainly done privately by the skilled advocate, which the mediator seeks to force out into the open. In doing so, the mediator seeks to recreate the illusion of the fact-finding process, the impression one is seeing how the wheels might turn down the road, in order to bring the combatants in from their cold hard facts to the realities lurking in the shades of gray.

As an advocate for over 35 years, I’ve been tasked with the development and presentation of that mural. I’ve looked for the small pieces that can be brought together to communicate my client’s needs, wants and desires. In much of that time, I have represented professionals that come to the process with their own biases and ideals, who see the matter from a particular perspective and who may have the mural half done, albeit unrealistically. The advocate molds that picture to make it presentable and adoptable to encourage the factfinder to accept its logic.

As a mediator, the task begins with an empty slate to which the snippets provided by each gladiator are added to assess the potential outcome – not to impose it but to expose its impact to those who face its effect. Much like Tom Cruise in a “Few Good Men,” who had the case outcome set before having the whole story, the mediator digests the submissions offered by each side and formulates a pathway to the neutral ground the peacemaker covets. As counsel, I often lay out for the mediator a carefully crafted courtyard that leaves in the shadows my client’s exposures in favor of highlighting the obvious logic and inevitability of their cause. As mediator, I must not so much alter that landscape as be certain that the ground cover is trimmed away as necessary to allow the sun to shine on the seeds of truth below. For the peacemaker cannot be the teacher. Much like Socrates, the peacemaker challenges the participants to explore issues with questions that set forth the importance of not only the facts they believe, but the facts they may face and thus see from that effort, or method if you will, the bigger picture so critical to the peacemaking chore.

It is that interplay of choices and consequences that drives the parties toward peace. It was after all, the WOPR endlessly seeking an upper hand in Tic-Tac-Toe that brought to light the hazards in “War Games.” The recognition of hazards and alternative outcomes is key to leading combatants to their ultimate point of peace. The role of mediator thus requires the gladiator to put aside boisterous advocacy in favor of the more neutral role of whisperer, not to tell anyone in the room what they should or must do or dwell on the elephant so obvious to all, but to bring out the bits and pieces that could be trampled underfoot as noted in “The Elephants and the Grass.” The peacemaker must avoid the tamping down of fears so often employed by the advocate.

It is those that have gone before us who have perfected this trail. I can but humbly attempt to reveal it here. Its importance is to drive home the required transition and to share with others a view of the process that encourages its longevity. I am happy to join the ranks of peacemaker and look forward to the opportunity to see conflicts from a new perspective.•

Michael E. Brown, a senior partner at Kightlinger & Gray LLP, has been practicing law for more than 35 years focusing on property insurance coverage/ bad faith and professional liability claims and administrative actions involving accountants, attorneys, insurance agents, and other professionals. The opinions expressed are those of the author.
 

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