Forgiveness 101 Condoning poor behavior v F or getting what - PDF document

Heartland Mediators Association April 26-27, 2018 Forgiveness 101 Condoning poor behavior v F or getting what happened v Minimizing the injur y v v Dependent on r eligious belief or pr ac tic e v R ec onc iling 1

v Cr eating a new stor y v R esolving blame, anger and r evenge F or you (not the per son who hur t you) v v L ear nable v A c hoic e v T alking Re spo nsibility v Ac c o untability/ Justic e v Se lf-pro te c tio n § He a rt a tta c ks § Ca rdio va sc ula r dise a se § Hig h b lo o d pre ssure § Musc le te nsio n § Stre ss § De pre ssio n § Ho pe le ssne ss § Ca nc e r 2

§ Ca rdio va sc ula r syste m: -L o we r he a rt ra te -L o we r b lo o d pre ssure § Ne rvo us syste m § I mmune syste m § Ab ility to think c le a rly a nd c re a tive ly § L e ss stre ss • I NCRE ASE D: • Ho pe • T rust • Ha ppine ss • Gra titude v Bilateral v Unilateral 3

v F o rgive ne ss is e xc hange d o n an apo lo gy o r de mo nstratio n o f re mo rse v Quid pro quo v Re quire s partic ipatio n o f bo th pe o ple v F o rgive ne ss is o nly po ssible if the pe rso n who c ause d the harm satisfie s the c o nditio n o f apo lo gy/ re mo rse v Primary be ne fit is re sto ratio n and he aling be twe e n tho se invo lve d, and it c an se rve as pre c urso r to re c o nc iliatio n v Primary drawbac k is the o ne who c ause d the harm has all the po we r, so it’ s no t always available v Forgiveness is undertaken by one party alone v Requires nothing of the other person v Forgiveness is unconditional v Person harmed has the power to forgive if they so choose 4

v Primary benefit is that it is always available, profoundly healing for the one doing it and there are no drawbacks v Can serve as a precursor to bilateral forgiveness } Ethics of Forgiveness v Zealous Advocacy v Fiduciary Duty v Conflict of Interest v Client’s Best Interests v Role of Lawyer 5

v The fundamental principle of lawyering: “As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system.” Preamble to ABA Model Rules of Professional Conduct v True meaning is to identify and zelously promote the client’s ’s b best i interests v Model Rules make clear that best interests are not limited to narrow legal concerns. Comment 2 to ABA Model Rule 2.1 “Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. . . . It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice.” Comment 2 to ABA Model Rule 2.1 6

Used to justify scorched-earth tactics v The bulwark of hyper-aggressive litigators v Narrow interpretation misses a more nuanced v consideration of the client’s needs Lawyers owe a fiduciary duty to clients. Fiduciary Duties Then and Now , Fox. Martyn & Pollis, Eds., (ABA Litigation Section 2009) “Fiduciary role is broader and more encompassing of the full range of an attorney’s professional and ethical obligations, than ‘zealous advocate.’ Charity Scott, Doctors as Advocates, Lawyers as Healers 7

v Lawyer owes client undivided loyalty v Lawyer must put client’s interests first v Lawyer must avoid conflicts of interest Comment 1 to ABA Model Rule 1.7, Fiduciary Duties Then and Now, Fox. Martyn & Pollis, Eds., (ABA Litigation Section 2009) v Client’s ability to function well in mediation/litigation v Whether anger/resentment is clouding client’s judgment v Potential benefit to client 8

v What is at stake fo r this pe rso n, be yo nd the imme diate le gal issue s? v I s a signific ant re latio nship at stake ? v I s the c o nflic t impairing the ir physic al he alth? v I s the c o nflic t impairing the ir e mo tio nal we ll- be ing? v I s this so me o ne who c an take matte rs in stride , o r is this pe rso n suffe ring ino rdinate ly? And if the latte r, the n fo r ho w lo ng have the y be e n suffe ring? v Can this pe rso n partic ipate in me diatio n, ne go tiatio n and/ o r litigatio n e ffe c tive ly? I s the ir ange r, re se ntme nt o r hurt ge tting in the way? 9

v I s this so me o ne who c an take matte rs in stride , o r is this pe rso n suffe ring ino rdinate ly? And if the latte r, the n fo r ho w lo ng have the y be e n suffe ring? v Can this pe rso n partic ipate in me diatio n, ne go tiatio n and/ o r litigatio n e ffe c tive ly? I s the ir ange r, re se ntme nt o r hurt ge tting in the way? v Ho w like ly is it that the me diatio n (o r litigatio n) will me e t this pe rso n’ s ne e ds, no t just le gally and financ ially, but e mo tio nally as we ll? v Ho w like ly is it that the o utc o me o f the me diatio n (o r litigatio n) will bring re so lutio n and c lo sure fo r this pe rso n? v Do yo u be lie ve this pe rso n wo uld be ne fit fro m fo rgive ne ss and making pe ac e with what has o c c urre d? v After working for this company for over 30 years, plaintiff was terminated. He believes he was the victim of age discrimination. He makes clear he wants the most aggressive attorney he can find. 10

v Client, same as above, wants to find the most aggressive litigator she can to bring suit against her siblings for mismanaging a family trust. v Client was injured in an auto accident. Preliminary discovery shows she has a very strong case of liability and damages, including substantial lost wages. The case has an early settlement value of at least $300,000, of which you would get a third. However, she indicates she wants to forgive the driver and settle for her medical bills only. If clients forgive ... They might decide not to pursue a claim, and not need the v services of the attorney/mediator. They might settle their cases more quickly, and not need as v much of the attorney’s time. They might settle their case for less money, and lawyers v working for a contingency fee will receive less. They might not need mediation, or as much mediation, thereby v reducing the mediator’s fee. 11

v Whe n a signific ant pe rso nal re latio nship is at stake inc luding tho se invo lving spo use s, siblings, pare nts, c hildre n, ne ighbo rs, c o lle ague s, c o - wo rke rs, and busine ss partne rs v Whe n the re is no future re latio nship but the partie s want c lo sure v Whe n inte nse e mo tio ns are ge tting in the way o f e ffe c tive ne go tiatio n and de c isio n-making v Whe n the de sire fo r re ve nge o r re taliatio n is pre ve nting the c o nside ratio n o f re aso nable se ttle me nt o ffe rs v Whe n the re is an ino rdinate amo unt o f suffe ring o ve r so me thing that o c c urre d a we ll into the past v E mplo yme nt disc riminatio n v Pe rso nal injury v Bre ac h o f c o ntrac t v Pro bate and trust v Sibling dispute s v Divo rc e 12

Prio r to Me diatio n (U nilate ral) v He lps partie s re so lve ange r and blame v E nable s the m to partic ipate e ffe c tive ly in me diatio n During Me diatio n I n Cauc us (Unilate ral) v He lps pe rso n manage ange r and func tio n mo re e ffe c tive v Re duc e s unre alistic de mands fue le d by the de sire fo r re ve nge During Me diatio n (Bilate ral) v I f bo th partie s are o pe n to it, the e xc hange o f apo lo gy and fo rgive ne ss c an be suppo rte d v E nable s re pair o f re latio nship and/ o r c lo sure 13

Po st-Me diatio n (Unilate ral) v F o rgive ne ss is always available v E nable s pe rso n to make pe ac e with whate ve r has o c c urre d v Focuses solely on legal issues v Views emotional and relationship issues as irrelevant 14

v Comprehensive view of legal problems v Humanistic v Interdisciplinary “Legal practice is showing signs of the evolution of a new professional identity for lawyers which is responsive to new dispute resolution processes with an emphasis on just and strategic settlement. . . . Effective negotiation and settlement skills are becoming increasingly central to the practice of law.” Professor Julie McFarlane, The New Lawyer v Seek legal solutions that include repair of relationship and healing. v Work with mediators who can guide this. 15

v Learn about forgiveness v Practice forgiveness v Put forgiveness on the menu of options v Support clients who want to forgive Ultimate Tool of Conflict Resolution INTERVENTION GOAL LEVEL 1. Stop the Fighting Cease Fire De-escalation 2. Settle the Issues Settlement Ending 3. Address Underlying Issues and Needs Addressed Forward Movement Emotions 4. Forgiveness of Others Closure Peace and Self Adapted from Kenneth Cloke, The Crossroads of Conflict, Janis Publications 2006 16

Every conflict teaches us what we most need to learn. } See conflict as an opportunity } Use conflict as a pathway for healing and growth } Learn what it is we most need to learn v “They don’t deserve it.” v “If I forgive, they’ll do it again.” v “It’s too hard.” v “I don’t know how.” v “Why should I forgive when I’m right?” v “What happened is unforgivable.” v “If I forgive, it means what happened was ok.” 17