Vail Daily column: Can’t we all just get along?
During the 1992 L.A. riots, Rodney King famously asked, “Can’t we all just get along?” Human nature being what it is, apparently not. At least not much of the time. I say, only-half jokingly sometimes, that owing to the apparently human wont to battle to the death, litigators have the greatest job security of all. But it need not necessarily be so. And it is the lawyers’ job sometimes to lead the pugilists to neutral corners.
One thing I have learned after being at this game of law for the better part of three decades now is that the alchemy of making molehills into mountains much too often applies. Little things become medium things which become huge things that flower into all-out thermonuclear annihilation.
In my experience at least, the worst is divorce. Too much emotion there. Too much knowing precisely how to push the other’s buttons. Too many things too dear and precious are at stake.
Second can be neighbor disputes. Oh, my, how neighbors can plant wicked thistles under each other’s saddles! It is shockingly common for minor quarrels between neighbors to fester over years and ultimately result in violence. Recently in Colorado, there was allegedly a neighbor shooting that revolved around a disagreement over a common driveway. Hardly the kind of thing worth dying for on the one hand or, on the other, staring a prison walls for life. And yet … once the launch button is engaged, it is painfully difficult to recall the missile.
Not all divorces are, or must be, fractious. Neither must all neighbor disputes devolve into resentment, anger, recrimination or, in the worst case, violence. Many times I have seen divorcing couples simply accept that, for one reason or another, their wedding dreams did not come true and treat each other with care, dignity, and respect. Sometimes, even, neither blames the other. I have seen a case or two where I simply scratched my head; why are these decent folks who so clearly care for one another separating in the first place? That should be the goal of one and all; to confound the lawyers with the parties’ utter decency.
Many lawyers of long experience will tell you that warfare need not be the goal. Usually there are better ways of resolving a dispute – even those which have been entrenched for years. And good lawyers will attempt to achieve that for their clients through patient counseling with their client, working cooperatively with opposing counsel, and resisting being baited into blundering down unprofitable and often costly paths.
You have no doubt heard the expression that “when you have a hammer everything looks like a nail.” There is some truth to that. Surgeons like to cut. Litigators all too often want to fight for every inch up unproductive hills. Better for both the lawyers and their clients to choose their battles tactically, economically, and wisely.
There are, in fact, good alternatives to mutually assured destruction.
First, it is the lawyer’s impost to give his client a reasonable appraisal of the dispute. This includes not only a fair assessment of the client’s chances for success, but a reasonable balancing of the costs, risks, potential benefits, and ruin which may be effected. Say, for example, the client has a $5,000 dispute but it will costs $10,000 in legal fees to address. The math simply does not add up and it is the lawyer’s job to say so. It is the lawyer’s job too to point out when the client’s goal seems more to exact revenge than to redress a wrong or seek just compensation for a loss. There is something inherently right about a lawyer informing his client that he is not in the business of revenge. And neither should be the client. Similarly, the goal in divorce – whatever hurt has been previously inflicted – should never be to “ruin” the other party. I have, sadly, heard this more than one.
Sometimes it is unavoidable – particularly where either the other party or opposing counsel is obstructionist or bellicose – but it is the lawyer’s duty to at least try to take the straightest line towards a reasonable and satisfactory resolution of the dispute. That said, the process of law often looks more like a recent plot of the Dow Jones Industrial averages than a straight line, and there is often heavy legal lifting involved to get to the end of dispute. Still, to the greatest extent possible, the lawyer must be cognizant of, and pay heed to, the client’s goals in litigation, his pocketbook, and all appropriate decorum. A little civility exhibited towards others, including one’s opponents, doesn’t hurt and perhaps helps set an example that the litigants themselves may ultimately follow.
The first attempt must be informal negotiation. Can the parties, with assistance of their lawyers, work out their own satisfactory solution? Self-made solutions are usually the best as each party knows most intimately what will serve his needs and interests and, in figuring things out themselves, they are not left to the caprice of an over-worked and necessarily under-informed judiciary. The judge or jury – notwithstanding the presumed brilliance of the parties’ respective attorneys and earnestness of the trier of fact – simply cannot, and will not, ever understand the dispute in the same way as the parties themselves. Neither will the judge or the jury ever really understand the intangibles of what the dispute means to them.
If negotiation fails, a second swing of the resolution bat can often be before a mediator. A mediator is a neutral third party – often a retired judge – who assists the parties in reaching their own solution. While the mediator can and often will twist arms and can and often will coerce and avail the parties the benefit of his experience and insight, he cannot make the decision for them. They must do so themselves.
In negotiation and mediation, one thing to remember is that the parties themselves must be both realistic and, at least to some degree, flexible and open. If it’s “my way or the highway'” it is a near certainty that the possibility of resolution will fall ignominiously on its face.What you are left with then is either capitulation or the open warfare of trial or its kissin’ cousin, arbitration.
While not precisely the same, the end result of both trial and arbitration is the same in that someone other than the disputants themselves will make a decision for them and it could well be a decision with which neither party is content. Nonetheless, they will each be bound by the determination imposed upon them and to which, by force of law, they will be bound.
Can’t we all just get along?
Most times, it is at least worth trying.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley. His practice areas include business and commercial transactions, real estate and development, homeowners’ associations, family law and divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.