Considering 'Civility' at Mediation

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By Bill Caprathe

What does being  “civil” mean generally and at mediation? Webster defines “civility” as “politeness ... a civil or polite act or utterance.” “Polite” is defined as “having or showing cultured or good taste; polished; refined ... having or showing good manners; courteous, considerate, tactful, etc.”

This is generally how we have, or should have, been raised to act by our parents and those who have influenced us throughout our developmental years. And this is how most people generally do interact with each other. However, when it comes to highly controversial or emotional matters, we may lose sight of whether or not we are behaving civilly.

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‘CIVILITY’ IN THE LEGAL SYSTEM

This is especially so for those of us involved in the legal system. Because of the significance of the outcome of most legal controversies, we may feel that our civility is not important. In other words, because of our responsibilities as part of the legal system, we may ignore the  dictionary definitions of civility and politeness.

Focusing only on substance and ignoring civility, often deprives us of the opportunity to determine if there is an approach that may be effective and, at the same time, courteous considerate, tactful, etc. Although considering an effective and civil approach will involve self analysis in relation to the facts of each situation, it merely amounts to drawing the line between our effective presentation, with or without “civility?

An excellent method for addressing such a dilemma was shared by retired Oregon Supreme Court Justice Paul J. De Munez at a Civility Symposium entitled, “Civility in the American Justice System, Promoting Trust and Confidence.”

The solution for him was revealed early in his legal career, when he was primarily representing defendants charged with crimes. An event occurred that changed his approach to the practice of law, and was a contributing factor in his successful career.

Because of his vigorous representation of his clients, there was an assistant prosecutor who disliked De Muniz immensely. Thus, De Muniz was shocked when that assistant prosecutor, who had himself been charged with a crime, hired the young De Muniz to represent him.

During the trial, De Muniz invited his mother to watch him cross-examine the key prosecution witness. His mom had a keen interest in his career and enjoyed sharing his legal experiences.

She attended court that morning and saw her son’s vigorous cross-examination that totally destroyed the witness. After the witness’s testimony, De Muniz took his mother to lunch, feeling exhilarated about the job he had done on cross. He said to her,  “Well Mom, what do you think?” She didn’t answer, but merely stared at him. He persisted, saying,  “Mom, I really want to know.” She finally replied, “Honest answer?” He said, “By all means,” expecting to be lauded for what he thought was his textbook cross-examination. Instead he received a verbal blow that made him rethink his approach to his profession.

“Well, I didn’t think I raised my son to totally humiliate another human being that way. Couldn’t you have made your points with the witness in a more civil manner, showing him some respect as a human being?” He had never really thought of doing his job in that way, and thus it became a lesson in civility he has never forgotten.

Always have the goal of considering whether the job can get done with civility. An excellent way to remember to do that, is to think about how one’s mother, or some other person we think highly of, would react to our approach, if they were watching. Would they see us as a worthy practitioner who is, as reasonably possible, being civil? After considering what we think their opinion would be, we may or may not want to do anything differently. The key is to take that point of view regarding a civil course of action into consideration, and then do what we believe is the right path to take. Entertaining another person’s opinion, should never obligate us to follow it.

I learned this in the first year of my thirty years as a Bay County Circuit Court judge. A fellow judge who had been on the bench several years before me, John X. Theiler, asked me if we could agree that if he asked me for my opinion or advice, I wouldn’t be offended if he didn’t follow it? We agreed, and from then on we could consider each other’s point of view without any obligation to accept it. This is how we should feel about another person’s opinion about our civility.  Consider it, but don’t feel obligated to follow it. For example if Justice De Muniz would have thought about his mother’s possible response before he cross-examined the witness, he could have followed her advice or disagreed with her and continued with the same, or a similar, plan to destroy the witness.

Our objective regarding acting civilly is to consider whether we can get the job done and still be polite, courteous, and respectful in the action we are about to take. This isn’t always easy for us in the legal system. We have been taught to fight to the end for our positions and principles. That is why giving civility sufficient consideration is key. 

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MEDIATIONS

Giving civility sufficient consideration is particularly important in mediations. Negotiators  fight for their side to get what they desire. Mediators need to make sure that proper procedure is being followed, and help both sides work together for an appropriate and timely resolution.

The definition of “mediate” in the American Heritage Dictionary of the English Language delineates the objectives of mediation: “1. To resolve or settle (differences) by acting as an intermediary agent between two or more conflicting parties. 2. To serve as a vehicle for bringing about (a result) or conveying (information) to others.”

To best accomplish these objectives the participants of a mediation should work together respectfully, without humiliating anyone involved. A person acting or reacting with civility can have a calming effect and often defuse a highly emotional and confrontational situation. A simple principle to consider, before and during the mediation, is the “Golden Rule”: “Do unto others as you would have others do unto you.” This can help us consider treating people the way we would like to be treated, that is, respectfully, fairly, reasonably, politely, and courteously. Once we have paused to adequately consider this, we can take whatever course we decide is appropriate. There is no right or wrong answer. By thoroughly considering civility, we take the right step, and can learn from the results for consideration the next time we have a similar opportunity.

Otherwise, by using the excuse, that we only need to consider the substance of the underlying issue as opposed to how we are presenting, we do not give civility a reasonable chance. Ignoring the style and tone and focusing only on substance eliminates the possibility that our point or position could be made as effectively without being disrespectful or offensive.

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SUMMARY

In summary, there is no need to reduce the effectiveness of our presentations for fear of being considered uncivil. We only need to consider civility before or at the time of making our presentations. Stop and think about what our Mother; or person we highly respect, such as a mentor, would say about civility regarding the course of action we are planning. Also, think about the Golden Rule, that is, do to others what we would like others to do to us. Then, follow our own intuition about the most reasonably effective presentation. The goal is to consider the substance of the problem and civility, and then do what we believe is the most reasonably effective action to take. By considering respectful engagement, we can increase the respectability the community has for ourselves and for the legal system.

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William J.  Caprathe spent 15 years as a successful trial attorney before being elected to the Bay County Circuit Court in 1980. He served as as a Circuit Judge for 30 years and was the Chief Judge from 1984 through 1997. In 1998 he was elected President of the Michigan Judges Association, and thereafter chaired the State Bar of Michigan’s Judicial Conference. Since his retirement at the end of 2010, he continues to sit on assignment, and conducts arbitrations and mediations. He has completed basic and advanced mediation training at both the National Judicial College and locally in Michigan. He is a FINRA arbitrator and a Community Resolution Center Board Member and a volunteer mediator.

He was appointed by the Governor of Michigan to serve on the Michigan Appellate Defender Commission. He also serves on the State Bar’s Dispute Resolution Section’s Council and the Bar’s Affordable Legal Services Initiative. Nationally he is active in the American Bar Association’s Judicial Division, National Conference of State Trial Judges, Senior Lawyers Division and Dispute Resolution Section.

Retired Judge Caprathe conducts private mediation and arbitration services through Michigan Judicial Alternative Dispute Resolution [MI-JADR PC], at offices in Bay City and Livonia. He is also an active member of the Professional Resolution Experts of Michigan [PREMi].