Problem solving on a personal level

By Douglas Levy

The Daily Record Newswire

"Do you want to be right, or do you want to be happy?"

Those words could very easily describe the conflict attorneys have when they bring the argumentative and interrogational components of their profession home with them.

As a result, the "winner" can often be the loser in a relationship.

"Lawyers are used to adversarial confrontations," said Susan J. Butterwick, a referee at the Washtenaw County Trial Court Juvenile Division, who also teaches in the Wayne State University Law School's Masters in Dispute Resolution Program.

"Because we have a greater tolerance and comfort level around adversity, it may make things worse at home. . We've all seen the polarizing effect of courtroom arguments and litigation on the parties; that's not the way most of us want to live with our families."

It doesn't have to be that way.

With alternative dispute resolution becoming more widely used for clients' matters and for attorneys' own professional advancement, those same resolution techniques can do wonders for lawyers' domestic and social environments - and overall quality of life.

That means being more reflective, empathetic, patient and observant - characteristics that can be simple to understand but difficult to practice.

The biggest step is changing how to listen with a clear mind and not rushing to response or judgment.

"When we are listening as lawyers, so often we're thinking in our minds about what we're going to say next," said Christine Zellar Church, a family mediator and associate dean at Western Michigan University Thomas M. Cooley Law School in Lansing. "Conflict resolution teaches you how to get that out of your head so you are truly listening. That's a skill you're going to use with your spouse and your children.

"Even my students are telling me that by the end of the class, they're seeing differences in their relationships from using those skills immediately."

'A recovering bad listener'

Robert E.L. Wright said he wishes he had learned those skills as an attorney, before devoting his practice to full-time mediation.

"I'm a recovering bad listener," said Wright of The Peace Talks in Grand Rapids. "One of the things I've learned is to listen more deeply to everything that is said around me, and not just in mediation, but to my friends, my colleagues and my wife."

Particularly his wife.

He said she would often complain about his behavior, such as his watching television while she tried to talk about her day.

"I was completely lacking self-awareness back then," Wright said.

So, as he trained to be a mediator, he got his wife to agree to be his test subject for what he was learning.

The first thing he observed was how attorneys are used to directive-directed questioning.

"In law school, you're taught you never ask a question of a witness unless you already know the answer, and you frame the question in such a way that they will give you the answer you're looking for," Wright said.

But the mediation process is different - it invites and encourages open responses.

"That's where we can perhaps discover fruit that will lead to a settlement," he said.

Wright then got rid of the distractions. He turned the TV off, sat eye-to-eye and face-to-face with his wife, and listened.

Initially he was verbally reflecting, or "parroting back," on what he had heard her saying. But as he developed the skill, he learned to take it deeper, using Marshall B. Rosenberg's "Nonviolent Communication" technique, or compassionate listening

"It's not just reflecting back the neutral, observable content like, 'I hear you saying I don't pay attention to you when you're speaking to me; I'm distracted by the television.' We could take that to the next level by also trying to reflect back the feeling component," Wright said.

"For lawyers, at least male lawyers, I think this may be one of the biggest challenges, identifying the feeling. 'I'm not listening to you, and you're feeling very annoyed by that behavior. Is that right?'"

The next level is determining what need she has that's not being met, he said, adding, "Usually if there's an emotion, it's attached to an unmet need."

So he concluded that his wife sought a sense of connection with him and an understanding that what she's saying is getting to him. She confirmed.

The final step was to ask what she would like for him to do different.

"Then we would get into a negotiation as to whether I can give her whatever it is she's asking for," whether muting the TV or turning it off completely.

Patience is a virtue

The way something is being asked for by the attorney, though, can mean the difference between an honest answer and a fearful reply.

Church said that when children do something wrong, the parents' first instinct is to cross-examine them - especially when the father is a county prosecutor, as her husband is.

"My kids will tell you, they've been subject to that," she said with a laugh.

But rehashing what happened and trying to assess fault is not the most productive way to resolve the conflict, Church said.

Rather, the results should be interest-based, not competitive and rights-based.

"You're listening to what happened and why did it happen instead of grilling them. Looking more at the interests playing out here changes your focus," Church said.

"Discovering truth does not resolve conflict. In fact, the search for truth polarizes the parties and creates more conflict."

Often times, the process means having a greater capacity for patience.

That's a trait Jon G. March said he developed as an ADR practitioner, following years of being a litigator.

He said that with litigation, many factors are encountered that don't advance the ball quickly enough.

"But in mediation, you let things play out and let people talk," said March of Miller, Johnson, Snell & Cummiskey PLC in Grand Rapids.

"Even though you might be looking at it as, 'Gee, this isn't really advancing us toward where we want to be, which is a settlement,' it's important for people to be heard and to have an opportunity to say what's on their mind."

The very same is true in home- and social-life conflict resolution, he said. But observation is equally important.

Litigation is all about that, he said, "such as in depositions and jury selection, where body language and the way responses are worded are scrutinized.

"Those are skills I have honed in the mediation practice, as you're listening to someone talk and watching their reaction and trying to get an idea of where they really want to end up and what's really driving them."

March said that after he'd been fully immersed in his ADR practice, he served as a moderator for a church event. He said his wife told him later about how she was impressed by his level of patience and for giving everyone an opportunity to be heard.

"As a younger lawyer doing only litigation, I would have been more apt to push to get to the point rather than be more relaxed and let things happen a little more easily and naturally," he said.

Wright said patience also should be applied to oneself, and things shouldn't always be taken personally.

He said oftentimes he'd become defensive in his home life because he felt his self-worth was at issue.

"If you can just have a good sense that you're OK, we all make mistakes, and how would we ever be able to improve ourselves if we don't get some critical feedback, then you can listen to the information, you can learn to appreciate it and invite it," he said.

"It allows you to improve your game. If you're a better listener at home, you'll be a better listener with clients, which will lead to better results."

If you would like to comment on this story, email Douglas Levy at douglas.levy@mi.lawyersweekly.com.

Putting it into practice

Susan J. Butterwick, a referee at the Washtenaw County Trial Court Juvenile Division, teaches in the Wayne State University Law School's Masters in Dispute Resolution Program

She offered some conflict resolution techniques that attorneys can use in the personal realm:

Separate the person from the problem and work on the problem instead of accusations about the other person. "Personal accusations and attacks rarely resolve anything and only make the parties angrier at one another and leaves everyone in a polarized, defensive mode."

Listen to the other's story or perspective. "Listen and ask open questions to learn and not to prove a point. Ask what happened, or, 'What were you thinking about when X happened?'"

Distinguish between intent and impact. "Instead of being sure that we know why someone did something, discuss the issue from one's own perspective of how the act or issue impacted you. . Often when one hears how something impacted another person, they explain things from their perspective, and often the actual impact may not correlate to the real intent of the other person."

Reflect on how you may have contributed to the problem. "What was [my] intent?"

Reframe from the perspective of "I" instead of "You." This will allow better understanding of underlying interests or needs, instead of staying stuck on positions. "Ask 'why,' 'how,' 'what if' and 'when' questions to get to the underlying interests of why the other person feels the way they do."

Premature assumptions are crippling. "Mediators know there can often be multiple 'truths' that come out of different perspectives and experiences of the same event. If we assume we know before we hear, we may travel down a dead-end road."

Know when to hold and when to fold. "Is it really worth bringing up the same annoying habit that is still there after 10, 20, 30 years? If, after 15 or 40 years, your partner can't put the cap back on the toothpaste tube or the milk gallon, maybe it's time to look for another solution like a flip-cap brand of toothpaste or a different milk storage container. Criticizing these habits one more time will not make the difference. Your partner may have things to overlook in you, too."

Family meetings require listening and not talking. Families, especially, are used to interrupting one another in daily conversation; it only intensifies when there is conflict. "A simple talking piece with ground rules provides the ability for the person speaking to say what they need to say without interruption and for others to listen to understand, rather than thinking about what they want to jump in and say. [It's a] great equalizer for kids to feel like they are listened to. It makes everyone's voice of equal importance in a discussion."

Use great patience and persistence to make these things happen. "[It's] much harder when it is our own conflict than when we are helping someone else with their problems.

Published: Thu, Aug 13, 2015

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