Help With The Hard Stuff

I ended my last column asking you to think about what role you wanted the lawyer to have in helping you with your problem, and I suggested there are perhaps 10 different roles.

I use as analogy the roles identified by William Ury in his 1999 book Getting to Peace, later retitled The Third Side, and itself now the foundation of www.thirdside.org, part of the Global Negotiation Project that Dr. Ury directs at Harvard University.

Some of the basic premises of this approach are that:

• Conflict cannot be eliminated, but individuals have choices about how they respond to conflict;
• Humans are not naturally killer apes, nor are they naturally harmonious or peaceful ones, either – rather, humans are capable of both destructive and constructive responses to conflict;
• Most of the time, most people live lives of peaceful coexistence; and
• Negotiation is ubiquitous, most people spend much of their waking hours doing it, and, because of increasing interdependence, negotiation is necessary (but not in and of itself sufficient) for peaceful coexistence.

Dr. Ury identified three major “opportunities” to manage conflict in ways that may limit its destructiveness. Within each opportunity, he identifies specific roles individuals (including, I believe, lawyers) may be able to take.

The opportunities are: (1) while there are latent tensions, intervention may prevent the tensions from erupting into violence; (2) when there is overt conflict, intervention may help resolve the conflict and limit its escalation; and (3) when there is a power struggle, intervention may help contain it while it temporarily escapes resolution.

Cross the threshold of these three opportunities, and there is destructive conflict, violence and war. The motto of the third side is: “Contain if necessary, resolve if possible, best of all prevent.”

The specific roles he identifies are: (1) within Prevent, Provider, Teacher, Bridge-Builder; (2) within Resolve, Mediator, Arbiter, Equalizer, Healer; and (3) within Contain, Witness, Referee, Peacekeeper.

I believe lawyers can perform all these roles to help you with the hard stuff. But you need to know about them and know which you prefer. You also need to then discuss them with your lawyer as options within your case, and tell your lawyer which of the roles you want them to have with you.

Recognize that even while your lawyer could try out all roles, odds are the lawyer will be better suited to and experienced with a limited number of them, so pick the roles to the lawyer carefully.

Lawyers are human, too, and most of us humans are used to seeing the world and acting in a fairly set way. We may not be much practiced or expert in a large variety of tools, and think the tool we think of first and most use is the “best” tool for the circumstance, even for all circumstances!

As Dr. Ury writes, “(e)ach profession sees the world through its own prism. Wherever they look, business executives see financial opportunities. Politicians see unconverted voters. Carpenters see houses in need of repair.”

By analogy, I think it follows that a lawyer who is primarily a hard-core litigator sees primarily a case that must be fought and won in the court; and a lawyer who is primarily a hard-core mediator sees a case that certainly can be settled in a mediation caucus. 

Both are likely right in some cases and both are likely wrong in some cases, and it is probable that a broad range of possible options exists along the continuum between those two extremes that is worth exploring.

In the next column, we’ll explore how lawyers might be able to fill these specific, different roles in helping you with your conflict. For example, within Prevent, how can a Lawyer play the role of Provider, or Teacher, or of Bridge-Builder?

Here’s the link to #1, Legal Process is All about Negotiation

Here’s the link to #2, Lawyers are Human, Too

Editor’s note: Look for “Help With The Hard Stuff” every second and fourth Thursday of the month in the Los Alamos Daily Post.

Gini Nelson, JD, MA has been practicing law since 1983. She’s a member of the State Bar of New Mexico’s Law Practice Management Committee, and the State of New Mexico’s First Judicial District Court’s Access to Justice Committee. Views expressed in the column are hers and not necessarily those of these Committees. This column is providing public information through the auspices of the Los Alamos Daily Post at www.ladailypost.comand is not providing legal advice. Nothing in this column is intended to be an advertisement or solicitation of business. Ms. Nelson’s law office website is at www.gininelson.com. If you have questions that might be of general interest if answered in this column, please send them to column@gininelson.com. ©2013 Gini Nelson Law Office