Samuel Johnson is quoted as saying “[i]n order that all men may be taught to speak truth, it is necessary that all likewise should learn to hear it.” My chance to learn to hear truth came as I tried to wrap my “think like a lawyer” brain around the concepts of interest-based mediation during a 5 day, 10 hours per day course on family mediation. There is a leap of faith one has to make when transitioning between being “lawyer” and being “neutral” and, after years of legal training it is not an easy leap to make.
The mediation crowd calls it “letting the process work”. It took me 3 days to stop calling it “a quick way to get into trouble.” The hardest part in leaving the advocate behind is abandoning the lawyer’s laser focus on issues, facts, and law for simply hearing truth – not the law’s truth, but the parties’ truth – and realizing that in that moment of silent hearing meaningful solutions are generated without your involvement.
This moment does not come about without effort on the neutral’s part, but for the neutral, truth is a function of the parties communicating. Truth comes from the parties’ interests – those hopes, goals, feelings, and aspirations that under lie the demands and positions lawyers deal with and advocate for. This is a difficult concept for a lawyer to grasp, after all in our world truth, such as it is, comes from an application of facts to the law – our client’s position frames the battleground and once there, we use the facts of the situation to advocate that our client’s version is, under this area of law, more the truth of the matter than their client’s version. Once we perform our gladiatorial duties, we retire and wait for truth to be rendered from on high.
It takes effort to put aside the role of advocate and to refrain from “fixing the problem” – after all we’ve seen these scenarios played out time and time again and we know (in all probable likelihood) what a judge will do. After all, the song is the same only the singers are different. But there are solutions to be had when the effort is made and these solutions, these unique, individualized, personalized, perhaps illogical (to our lawyer mind) solutions seem to work, seem to make everyone happy, and seem to last.
At some point, while I was attempting to drink from a fire hose, a light went on and I could lay my lawyer’s hat aside and pick up the neutral’s hat and hear truth another way.