Considering 'civility' at mediation

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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.”

This is especially so for those of us in the legal system. Because of the significance of the outcome of most legal controversies, we may feel our “civility” is not important, and that 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, “Civility in the American Justice System, Promoting Trust and Confidence.”

The solution 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 De Muniz to represent him.

During the trial, De Muniz invited his mother to watch him cross-examine the key prosecution witness. She attended court, and saw her son’s vigorous cross-examination that totally destroyed the witness.

De Muniz took his mother to lunch, feeling exhilarated about the job he had done on cross. He said,  “Well mom, what do you think?” She merely stared at him. He persisted, saying,  “Mom, I really want to know.”
She 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.

“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 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 is to think about how one's mother, or some other person we think highly of, would react to our approach. Would they see us as a worthy practitioner who is, as reasonably possible, being “civil?” 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. Entertaining another person’s opinion, should never obligate us to follow it.

I learned this in the first of my 30 years as a Bay County Circuit Court Judge. A fellow Judge asked if we could agree that if he asked me for opinion or advice, I wouldn’t be offended if he didn’t follow it. We agreed, and from then on 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. Our objective is to consider whether or not 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. We have been taught to fight to the end for our positions and principles. That is why giving “civility” sufficient consideration is key. 

Mediations

Giving “Civility” sufficient consideration is particularly important in mediations. Negotiators fight for their side. Mediators need to make sure proper procedure is 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 is : “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. 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.

Summary

There is no need to reduce the effectiveness of our presentations for fear of being considered uncivil. The goal is to consider the substance of the problem and “civility,” and do what we believe is the most reasonably effective action. 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 a Circuit Judge for 30 years and was Chief Judge 1984-1997. In 1998 he was elected President of the Michigan Judges Association, and thereafter chaired the State Bar of Michigan’s Judicial Conference. Since retiring in 2010, he sits on assignment, and conducts arbitrations and mediations. He has completed basic and advanced mediation training at the National Judicial College and 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 SBM Affordable Legal Services Initiative. He is active in the American Bar Association’s Judicial Division, National Conference of State Trial Judges, Senior Lawyers Division and Dispute Resolution Section.
Caprathe conducts private mediation and arbitration services through Michigan Judicial Alternative Dispute Resolution (MI-JADR PC) in Bay City and Livonia. He is an active member of the Professional Resolution Experts of Michigan (PREMi).

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