Russia’s unprovoked and unwarranted invasion of Ukraine understandably has the world on edge. For the first time in most of our lives, the possibility of countries becoming entangled in a ground war in Europe is no longer hypothetical and the threat of nuclear war is suddenly far too real.
The noble but ultimately unsuccessful efforts on the part of world leaders in the weeks leading up to last week’s invasion to convince Putin not to do so, together with the unified response by NATO countries and the almost-universal condemnation of Russia by the UN since the invasion began, stand as stark reminders that diplomacy must always be the first tool employed by those in conflict.
Far too often, the ferocity of today’s legal skirmishes create obstacles to compromise and peace. Parties to the dispute, along with their respective counsel, assume the roles of enemy combatants, determined to wage an epic battle until one side is able to declare victory over the other. To trumpet their unyielding allegiance to client and cause, and to perfect reputations as unrelenting warriors, opposing counsel frequently treat each other with incivility or, worse yet, overt hostility.
Having established such an adversarial relationship, it’s no surprise that opposing counsel and their clients sometimes arrive at mediation prepared to perpetuate the battle, each viewing the other side to be the enemy and each wanting to establish an alliance with the mediator that they hope will lead to the other side’s unilateral surrender. Conveniently overlooking, or deliberately ignoring, the fact that mediators are the functional equivalent of Switzerland — i.e., neutral peacemakers whose role is to facilitate communication, the exchange of information, negotiation, compromise and, hopefully, resolution — each side looks to the mediator to serve as partisan arbiter of the merits.
To give your client the best opportunity to resolve a dispute at mediation, try agreeing to a ceasefire. Consider reaching out before the mediation to talk privately with opposing counsel to establish a framework for peace. Make clear that you are not the enemy, but rather an ally determined to work collaboratively to help your respective clients stop the metaphorical bleeding.
During private caucuses with your mediator, disclose any weaknesses that may be of concern. Entrust your mediator with the details of confidential information that you may have obtained. Candidly discuss the full range of possible outcomes and the anticipated cost to pursue them. Establish realistic objectives for the ensuing negotiations and develop strategies with your mediator that will give you the greatest chance to achieve them.
Remain open to joint sessions and steadfastly avoid making provocative or inflammatory statements that may add fuel to the flames. When communicating your position, use the utmost diplomacy. Notwithstanding your differences of opinion, convey respect and appreciation for the other side’s position and supporting arguments. Concede points that cannot seriously be contested or that are of less significance to the principal dispute. Cooperation and compromise tend to foster greater trust, which inevitably gives rise to even greater cooperation and compromise.
To quote Martin Luther King, Jr., “Peace is not merely a distant goal we seek, but a means by which we arrive at that goal.” When you have a choice between war and peace, give peace a chance.
As always, it would be my pleasure to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.
Best regards,
Floyd J. Siegal