The Hammer Difference

“Mental Availability Precedes Persuasion”

 

I could not come to your home and share dinner at your table unless and until you first let me through the door. Relatedly, I could not enjoy a five-course meal at home unless I first convinced myself that it made more sense to buy and prepare the food myself, as opposed to ordering out or dining in. In litigation, an attorney cannot begin to persuade a Judge until she or he has the Judge’s attention and keeps it.  There must be “buy-in” BEFORE anything else can happen.  

 

This insight is no less essential to the ADR context than it is in litigation. In life, mental availability is an absolute prerequisite to persuasion (in any form). You cannot “sell” a person who is not listening — this is an insight from the famous advertising giant, Bill Bernbach. But, persuasion is not simply the province of litigators, salespeople, politicians, advertising gurus and hucksters. Persuasion is both internal and external and it exists in all manner of daily life. Listening is where it all starts. And listening is harder than it seems, if it is being done actively and mindfully. 

 

Every day, we listen to internal monologues and external messages and we persuade ourselves to eat the pint of ice cream, skip leg day at the gym, vote for the other candidate, watch the other show, take the ski trip instead of the beach trip, buy the new car, or take the new job. Some of those decisions we arrive at ourselves, some are influenced by others in our life, and some are a combination of the two. Likewise, in myriad ways, our children, our friends, and our spouses persuade us and we persuade them. Our coworkers, our bosses and our employees do the same. Always and everywhere, human beings are involved in the act of considering, persuading and being persuaded - whether we consciously realize it or not. 

 

Appreciating the power of consideration and persuasion is the beating heart of what I do. In an ADR process, for a “deal” or settlement to be achieved requires two parties to agree upon the terms of the compromise. As such, each party must accept, on some level, that the result makes sense (as opposed to the litigation alternative). Even before any substantive resolution is reached, parties must accept, on some level, that proceeding in a non-litigated context makes more sense than litigating. And during an ADR process, at many stops along the way, parties must continue to accept and reaffirm that choices, decisions and agreements (small and large) make sense. Those are all decisions that ONLY clients, with the assistance of their lawyer, can make. It is not the province of the ADR neutral to make them or impose them. Externally imposed results leave a bad taste in the mouth and are not durable results. In each instance, there is internal persuasion that is at play. And my role, as I conceive it, is to create and facilitate an environment where parties and their attorneys can listen actively, be heard actively, and have the mental availability to then consider and arrive at various choices - via a mechanism of internal persuasion. 

 

“Reason is a Slave to the Passions”

 

The Scottish Enlightenment philosopher, David Hume, posited that reason is a slave to the passions. That was true 500 years ago and remains true today. One could credibly assert, consistent with the Pareto Principle, that fully 80% of what drives conflict in divorce is not legal, objective, rational or logical. It is the smaller, but more difficult aspect of the case: the emotional context(s) out of which it arises. Knowing that, of course, is necessary but not sufficient to arriving at a negotiated resolution in a family law matter. Knowing how, when and why emotion takes a case off-course is vital. Having the tools and ability to navigate parties and lawyers back onto the terrain for settlement is even more critical.

 

As someone who has personally litigated, negotiated, mediated and worked directly with complex emotional content (personally and professionally), I have created a flexible, working “matrix” for assessing, managing, and navigating the inevitable issues that arise; issues that can, if not addressed properly, derail the settlement of a contested matter. Many times, the undercurrents of emotion drive a case in ways that are opaque and not immediately visible. Being able to swiftly see those undercurrents arise and address them, before they express themselves and damage a case, is essential. Of course, this is not always possible. When emotion has already scorched the earth or created fracture, being able to restore and return a case (and clients) to working through and past the complex suite of emotional content is vital. I am a divorced parent myself. I know the fear, anger, betrayal, regret and loss that parties often feel. As a former actor and litigator, I know the power of words, the weight of feeling, and the persistence with which emotion asserts itself. Too often, we run away from emotion in divorce. It is hard, messy and often difficult. But it is always there, whether or not we name it and address it. My role is to not shy away from that fact, but to compassionately and responsibly harness the turbulence and redirect it, toward a positive end. 

 

Robust, Real World Data and Deep Diagnostics 

 

Within both litigation and ADR, it is virtually impossible to assess the viability, strengths or weaknesses of positions in any kind of evaluative context without robust, real-world data. Many people can easily and breezily assert “what the Courts are doing” in an off-hand, generalized manner. And directionally, those assertions may be 51% accurate, 51% of the time. But ultimately, those statements are of no more use than the general observation that it tends to get colder in Chicago after Halloween. Who, What, When, Why and How — all matter. There are gradients and distinctions to real-world judicial outcomes that are driven by a host of complicated factors, all of which must be understood (first) and then unpacked. A Court in Cook County may not handle certain issues in the way that a Court in DuPage or Lake counties might. Even within a system, there are Judges who tend to approach certain issues in one way, while their colleague down the hall might handle it another way. Simply put: there is no unitary and unified manner by which outcomes are determined in family law matters. Knowing what those differences are, in a detailed way and at a granular level, is critical. This permits for the creation of a dynamic diagnostic model that is data-driven, rigorous and calibrated. That is why my proprietary database of judicial outcomes, amassed over 15 years in practice, is helpful to the core activity of position assessment. And because I continue to provide litigation consulting and private client services, my informational database continues to provide up-to-date and detailed data points to draw upon in ADR contexts. 

 

Horses versus Zebras

 

Upon a patient presenting in the Emergency Room with an array of curious symptoms, it is critical for a physician to draw upon his or her education, training and experience to correctly assess the data and arrive at an accurate and precise diagnosis. The maxim from medical school is to differentiate properly and when you hear hooves: think horses, not zebras. A family law matter is no less data-driven. Complex financial and custody cases present unique and difficult issues. Sometimes those issues are merely horses, other times those issues are zebras. Having extensive and direct experience in directly handling those kinds of matters, from a litigated context, is invaluable to threading the delicate needle of those issues in an ADR context. Without a deeply informed understanding of the core aspects, features and challenges contained within certain issues, the evaluative capacities of any legal professional are impaired, like a physician making an assessment before the blood work and urinalysis have returned from the lab. From psychological and psychiatric issues to drug and alcohol issues to business valuation, executive compensation, and estate planning vehicles - there are areas where a detailed familiarity with Who, What, When, Why and How matters greatly. Knowing WHAT and HOW are primary among these. As a former litigator who has unpacked the work of experts in forensic psychological and forensic business settings in some of the largest and most complex family law cases, I am aware of where to look, what to ask, and how to assess the data.