The Greek Comedy We Call Litigation

09/25/2015 03:03 am ET Updated Sep 24, 2016

If the consequences weren't so tragic, the manner in which people tend to address their conflicts and disputes would make for great comedy.

Let's say that I am involved in a dispute with someone with whom I have a longstanding relationship of some sort. Examples of such relationships might involve family members, employer/employee, landlord/tenant, debtor/creditor, parent/child/school, neighbor/neighbor, business associates, and many others. Let's also say that the relationship will be ongoing, whether I like it or not. For instance, we happen to have children together, regardless of their age. While I realize that disputes under such circumstances rarely occur, please humor me for a moment.

Regardless of whether or not my dispute involves a legally enforceable right, I immediately seek out an attorney to represent me. After all, isn't it the role of an attorney to assist me in solving my problem? In any event, even though lawyers tend to be extremely competitive people, I am so angry that I retain the most contentious lawyer I can find.

Whether I realize it or not, because of the nature of their work, lawyers tend to be logical, analytical and rule-oriented people with very low emotional intelligence (EI) levels. It makes perfect sense when you consider that their job is to effectuate a "win" for their clients and they can't be bothered by the damage they cause to interpersonal relationships as a result of their efforts. Empathy for their adversaries would interfere with the killer instinct needed to achieve a "win" at all costs.

This inherent trait among lawyers frustrates me to no end, whenever I have found myself involved in a disagreement with someone who happens to be a lawyer. They tend not to back down from their positions very easily because of their competitive nature and need to win. Regardless, I believe that such resolve is essential for them to achieve victory on my behalf.

It either doesn't occur to me or I am just so upset that I lose sight of the fact that when you 'win' an argument you often damage the relationship. Maybe I figure that since the relationship has already been damaged to some degree, we might as well just kill it off, so to speak. Who cares if I will have to co-parent with this person, or see them at family, social or business occasions? Ultimately, it's all about the win and who better to secure me a victory than a highly competitive lawyer, right?

As the Bible says, "Reckless words pierce like a sword, but the tongue of the wise brings healing." (Bible, Proverbs 12:18 (NIV)). "The pen is mightier than the sword," as they say. Since the goal is complete annihilation of my opponent, the gladiators of the written and spoken word are most suited for the task.

Until I began working with my lawyer, it never occurred to me that they tend not to hear people's needs, including those of their own clients, because they are so focused on formulating their response while being spoken to. Since it takes emotional intelligence to engage in active or empathic listening, this reality should be of no surprise. However, since lawyers are known to be paternalistic (particularly in the field of family law), I feel a sense of safety in knowing that my lawyer will protect me. It doesn't occur to me until it's too late that what I felt was a false sense of safety because the protection they provided was based upon their perception of what I wanted. They never really understood my needs because they never actually heard them.

I also didn't know that the emotional intelligence which lawyers tend to lack, hinders their self-awareness, self-management, social awareness, and relationship management. "The core of high EI is self-awareness: if you don't understand your own motivations and behaviors, it's nearly impossible to develop an understanding of others. A lack of self-awareness can also thwart your ability to think rationally and apply technical capabilities.... And an inability to manage ourselves severely constrains our capacity to use hard skills such as the technical competence that we have worked so hard to master... In fact, high EI bolsters the hard skills, helping us think more creatively about how best to leverage our technical chops...."

"This is the problem: those who most need to develop [emotional intelligence] are the ones who least realize it... You can't work on a problem you don't understand.

A critical component of emotional intelligence is self-awareness -- this is the ability to recognize and stay cognizant of behaviors in the moment... Those with weak emotional intelligence often underestimate what a negative impact their words and actions have on others. They ignore the gap between what they mean to say and what others actually hear...

Having high emotional intelligence means making choices about how you respond to situations, rather than having a knee-jerk reaction. [This includes a tendency] to interrupt and shoot down other people's ideas before they could complete their thoughts. This behavior [is] a reaction to his fear of losing control of the discussion and wasting time....

Listening means helping others feel like you've understood them (even if you don't agree with them). It's not the same as not saying anything. It's simply giving others a chance to convey their ideas before you jump in... You need [an] understanding both your agenda and theirs and seeing any situation from both sides [in order to] determine a way forward that takes both into consideration."

What good is it if lawyers are known to be logical and analytical, but have difficulty thinking rationally because of their low emotional intelligence? In any event, I never quite understood these concepts, the unintended consequences they would have, and that far more constructive approaches to dispute resolution existed and were more appropriate for my situation.

These modern day gladiators receive rigorous training in the art of litigated negotiation, which may or may not culminate in a competition before a judge and/or jury in the battlefield known as a court of law. The gladiators are often supported by litigation experts of various types, who tend to come up with very different "expert" opinions, depending upon the needs of their particular gladiator. The victory of defeat is the ultimate goal and the competition is fierce. Nobody involved in the contest intends on losing the battle - everyone is playing to win and only one will succeed.

As the battle heats up, the scent of blood draws spectators among parents, grandparents, siblings, other family members, friends, co-workers, bystanders, and new partners, if any. The excitement of the battle causes the gladiators, the "experts" they hire, and spectators to fuel the fight in the relentless pursuit victory.

Meanwhile, those spectators caught in the middle, such as the children of battling parents, watch in utter horror. Depending upon their age, they may realize that the wounds of war between their parents will never heal and try to comprehend how their lives will change forever, as a result. They are caught in a no-win situation and are often encouraged to take sides, which they often do.

The rifts to interpersonal relationships that occur as a result of such an ugly and abusive means of resolving disputes are long lasting and in many cases, permanent. Sadly, such "collateral damage" was predictable from the outset. It's just par for the course, as it were. Or is it just the outcome resulting from the approach taken? Always remember that outcomes are typically determined by the way in which the "game" is designed.

Unless this scenario appeals to you, might I recommend that you seriously consider mediating your issues, ideally with a skilled mediator with high emotional intelligence?

As John Ford says in his wonderfully insightful book Peace at Work - The HR Manager's Guide to Workplace Mediation:

Supporting the resolution of conflict through mediation is considered a high-level emotional intelligence skill that integrates and draws on all the domains of emotional intelligence: self-awareness, self-management, social awareness, and relationship management....

Generally, mediation is a great idea where there is an ongoing relationship that is characterized by poor communication and emotional charge, the so-called personality conflicts....

To be able to participate in mediation, the parties need to be able to listen to one another, communicate their needs, and negotiate. Where a participant is too upset or extremely hostile, mediation may not work. However, this is often more a question of timing, and one of the strengths of mediation is its ability to address strong emotions.... It can be very difficult mediating with emotionally immature individuals who assume a victim mentality and are fixated on vindication. That said, you may choose to mediate notwithstanding the immaturity of one or more of the participants. This is because an agreement or a narrowing of the issues is still going to be better than a chronic unresolved conflict situation.

Please note that I am not referring to what most in the legal field consider "mediation" because that doesn't involve any aspects of emotional intelligence and the "mediators" are no more emotionally intelligent than the lawyers who selected them. This shouldn't be of any surprise because why on Earth would lawyers select mediators who resolve issues in a manner that is completely foreign to them?