Gini Nelson\’s Engaging Conflicts

August 8, 2006

Non-legal Perspectives In Mediation Can Address Some Conflicts That the Law Is Powerless To Impact, By Guest David B. River

Filed under: Attorneys and Mediators - No Conflict Here!,Ethics — Gini @ 1:22 pm

Guest David B. River responds today, as he and Rawle Andrews Jr., Esq. continue their conversation about ethics and professional development in mediation. He and Rawle are guest blogging on alternating weeks during this discussion.

“Actions and inactions have consequences. Every decision we make, to act or to refrain from acting, has legal consequences, whether known or unknown to us at the time.” In addition to legal consequences, every decision we make has interpersonal consequences, social consequences, biological consequences, moral consequences – the list can go on. Why do I bring this up? I challenge Rawle to see that “the law is the ice cream of human existence” only to lawyers.

I mean, really, the law has some serious limitations when it comes to social interactions. How useful is the law when lovers fight? Would they look to the law to see their way through their disagreement? Or how about a family fighting over mom’s estate? Does the law help Tommy see that he is only angry because Joe got more attention growing up? Will a legal judgment really help those siblings ‘keep the peace’?

The law doesn’t simply and easily translate to people’s specific situations. It doesn’t easily address displaced conflict (arguing about the wrong thing), misattributed conflict (arguing with the wrong people), or false conflict (based on misperception). It has a difficult time answering moral and value questions, and when it does, that means little to people whose values differ. It tends to be biased towards those who can afford it, and it appears to do a poor job of leaving those people who litigate with the experience of justice.

The law is a very useful thing to turn to when people are willing to defer to authority, are looking for a standard, or – if “kicking and screaming” – we must rely on the sanction power of authority to keep the peace (and hope that it will). It solves some problems, creates others, and leaves others unaddressed – like anything.

I don’t see the Law as the “endgame.” What a strange proposition! The law addresses conflict between people. Why? For the law? No. The endgame is resolution for the human beings involved in the conflict, and the impact of that resolution on society in general.

I am not, in any way, diminishing the importance of the law. I am advocating for people to understand that the approaches to conflict resolution being brought about from non-legal perspectives are extremely valuable in their own right, and have very distinct aspects from legal dispute resolution with their own benefits and dangers. They can address certain conflicts that the law is powerless to impact. To lose those perspectives in a legal viewpoint, or view them as some subset of law, would be a great loss indeed.

Best Wishes,

David

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