It’s a Gray Area:

Looking back over my career as a trial court judge, I believe that the thing that brought me the most gratification was helping people to resolve their disputes voluntarily. In fact, in my current work as a private mediator I am still able to do that, so the gratification continues.

But upon reflection, many of the things that I do professionally to facilitate voluntary resolutions of disputes could also be utilized by everyone to resolve their daily disputes. So I thought I would use today’s column to pass along some of the tips that I have learned throughout the years, and I recommend you consider and employ them, and even discuss them with your children and grandchildren to help train them to be peacemakers.

One tool to use at the beginning of settlement discussions is to anticipate the moments in which people on one side or the other may get emotional or upset by asking questions like: “How should we handle it when. . . ?� Many times, settlement discussions are frustrated by these situations. But if you have anticipated them by asking this question, people will see the emotions for what they are, and be able to get through them.

Probably the most important tool in dispute resolution is listening actively. In fact it should not be considered to be an accident that the word “listen� has the same exact letters in it as the word “silent.� Not only will you receive important and often subtle information simply by listening to people as they set forth their grievances, you will also gain their confidence by showing that you are willing to consider their feelings and positions. So understand that there is a huge difference between the act of listening, and the act of simply waiting to talk.

In addition, sometimes people simply need to vent before any serious discussions can begin. So take the time to listen to them, and interrupt only with brief, clarifying questions. This will show them that you are listening and interested, but it will not interfere with the flow of their thoughts.

It is also important to focus upon the fact that the act of listening is not at all the same thing as agreeing. But seldom can disputes be resolved by people who do not understand the position of each side. Then once the person has finished, it can often be helpful to summarize in your own words what that person has said. This will help to put things into perspective, and also show everyone involved that you understand what the issues are.

At this point you can effectively bring up problem areas with each side’s positions by asking neutral but realistic questions. For example, if one person says that she loves to play Beethoven really loudly in her apartment because it is wonderful music that everyone should enjoy, and it really helps to calm her down, ask her how she would feel and react if her neighbor felt the same way, but instead played Bon Jovi? Or ask if she would be able to calm down just as successfully if she listened to her music with earphones. Questions like that are neutral, but bring up realistic problems and possible resolutions.

Once the discussions begin, never use dismissive or disparaging words about any of the participants or their positions, and do not allow anyone else to do so either. Some examples of these are: “Oh, I will just pay ‘nuisance value’ to settle the case,� or one person saying that someone on the other side is a fraud or a thief, or even calls the other party a “jerk,� “dirtbag� or “slimeball,� etc. If that happens, immediately interrupt and say that such words are counterproductive, off limits and not allowed. And be firm about it, because almost nothing will poison a settlement discussion like comments of this kind.

In more complicated disputes it is frequently helpful to ask each side to brainstorm and come up with one or more proposals that take each side’s interests into account. By engaging them in this process, it frequently brings the parties more to a realistic understanding of the problems, and also brings them closer together.

Several years ago I helped to settle what was probably the first Catholic priest child sexual molestation case in the country by not allowing anyone to discuss money at all. Instead, I asked the plaintiff and his attorneys, who were all Catholics, to adjourn to my jury room and prepare a list of institutional changes that they would suggest be adopted by both the Los Angeles and Orange counties dioceses that would seriously reduce the chances that this scurrilous alleged conduct would ever happen again. The plaintiff and his attorneys did so, and in about an hour emerged with a list of 10 suggestions.

Then I requested the church representatives and their attorneys to go into the jury room and consider and respond to those suggestions. When they emerged in about another hour, not only did they agree to each of the 10 suggestions, they actually added an additional one of their own.

At that point, I suggested a dollar figure to settle the case that was quite a bit less than plaintiff had requested, but more than the church had said it was willing to pay. Soon each side agreed to that number, and the case was settled. This approach enlisted each side to help address the fundamental problem, and helped to give them a vested interest in being a part of its resolution. The plaintiff realized that he could never institute these changes by going to trial, only by settling the case. And the church recognized that it could turn an enormously negative situation into something more positive. In addition, each side also received the gratification of knowing that this positive result was facilitated by their own suggestions.

A big secret tool in dispute resolution is to keep the parties slowly moving closer toward each other. And this progress can be about anything. In the example above, if the complaining neighbors simply state that they also enjoy Beethoven, that can disclose a common bond between them. And the more things people see that they have in common, the more likely they are to agree to a workable resolution of their disputes.

Finally, in my mediation efforts I often tell the parties that I am really in the “dissatisfaction distribution business,� and that is true. You will notice that in this discussion I have only used the word “resolution,� and not the word “solution.�

The reason is that most of the time the only things that have actual solutions are mathematical equations; human problems only have resolutions.

So when you are attempting to work with people and deal with their disputes, make sure they understand that probably nothing will make the situation perfect.

We only can do the best we can in an imperfect world.

But being a peacemaker is a skill that can be practiced and improved. And once it is employed successfully, it can bring to you about as perfect a feeling as you will ever enjoy.

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of Wearing the Robe – the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at [email protected] or via his website at www.judgejimgray.com .