Keeping Your Eye on the Prize
I recently had a conversation with one of the top mediators in Minnesota. “Bill” said that the best advice he ever received as a mediator was not to care if the case settled. He explained that if he focused so intently on a sought-after outcome (or “prize”), rather than on the process of the negotiations, he would miss the beginning and the middle of the process. And it’s there, in the process itself, where many insights and possibilities surface. Following the advice given to him, Bill has become far more effective as a mediator, and as a litigator.
The conversation reminded me of one of my former clients, “Sue”. She had represented a woman in a contested divorce. Following the trial and the submissions of proposed findings of fact, conclusions of law and order, the court entered an order in the form proposed by Sue, awarding the bulk of the marital property to Sue’s client. For Sue, it was a clean sweep, a text book perfect outcome. With the prize in hand, and wanting to deliver the good news in person, Sue asked the client to come to the office. With her client right there, Sue told the client the outcome of the proceedings. In response, the client simply said: “You’re fired”, and walked out of the office. As it turns out, the client didn’t care so much about the division of property. For her, the prize was her family and salvaging the remnants of the good will that remained after so many years of a very difficult marriage. Sue’s hard-ball tactics had further stressed an already stressed-out family. Somehow, Sue hadn’t identified what the client had prized all along.
So, how can you have confidence that you understand what the client prizes and how that might change in the course of the representation? I have several suggestions.
- Listen deeply to the client. Of course, what the client says is important. Pay attention not only to what the client says, but also to how the client says it. What is the client’s emotion? Perhaps it’s not yet the time or place to figure out the “prize” sought by the client. Such deep listening on your part requires that you be present, not so distracted by your own agenda and stress that you fail to identify what the client is seeking.
- Be curious and present as the representation proceeds. As Bill does in his mediation process and in his litigation practice, be alert to how the representation begins and how it proceeds. Like many raffle drawings, you must be present to win. That is, keep your focus on what is transpiring in the here and now. You’ll miss a lot if you’re stressed, blinded by your dogged pursuit of your own objectives, or zealously seeking a textbook perfect outcome which may not suit your client, or the facts and personalities of the case. You and your client are best served if you see the many moving parts of the case as it unfolds.
- Stay connected to the client. Seek feedback from the client. In a conversational tone, ask: “How are we doing?” “How are you doing?” “Anything I might do to better meet your needs?” Your sincere interest in doing your best will foster collaboration with your client and will be appreciated.
- With the prize in mind, be present and open to other outcomes. The prize initially sought by the client may change in the course of the case, and the possibilities of outcome, including settlement, may also be fluid. While you will certainly advocate for the outcome sought by the client, remain open to other outcomes along the way.
From where I stand, our training in the law and our ability to tell our client’s stories for their advantage are essential to providing effective representation. Yet, sometimes we don’t stay connected with the client, aren’t aware of the prize the client is seeking and of the possibilities that arise in the course of the representation. Another way to say this is that we best be present. Presence has been defined by many people, including by a teacher of mine, Richard Strozzi-Heckler: “Presence is being present – a state impregnated with an open-minded curiosity, relaxation, and power that comes from seamlessly knitting together one’s mind, body and spirit.” The quality of being present, especially in stressful situations, can be learned and practiced. The cultivation of presence has been an interest of mine for many years and it is often what clients seek to develop, for their benefit and the benefit of their clients.