The definition of practicing law competently is changing. I maintain that to practice law competently, as that term is defined in Rule 1.1 of the California Rules of Professional Conduct, and to “keep abreast of changes in the law and its practice,” we must recognize that every transaction and every litigated matter has both a legal component and an emotional component, and that we must develop the skills to handle both components with sensitivity. As competent lawyers, we can no longer focus on the legal facet and neglect the emotional facet.
I refer to the legal and financial aspects of any negotiation or dispute as the “legal case”; i.e., the evidence available, the case law, the statutes and regulations that might apply, the causes of action that might be cognizable by a court and the norms of usage that the negotiators are familiar with. The legal case also includes the economic advantages and terms that negotiators vie for, damages that might be recoverable in a lawsuit and the cost of bringing the matter to trial (and possibly appealing a verdict) or failing to reach an agreement. I refer to the emotional and psychological facets of any negotiation or dispute as the “emotional case”; i.e., the things that might not be cognizable in a court of law but are nevertheless of great importance to the parties, such as a desire for fairness, to save face, to receive justice, to prevent injustice, to be heard, to be vindicated and to obtain peace of mind. It includes people’s feelings, needs, thoughts and beliefs about themselves, the person(s) or entities they are in dispute or negotiation with and the dispute or negotiation itself. The emotional case is typically what the parties care most about in a given dispute; it’s what tends to drive the matter as a whole. And it is frequently unrecognized, unacknowledged or simply ignored.
Most people who find themselves in the midst of conflict do not experience their dispute as primarily a legal event or a business transaction, but rather as something profoundly emotional and personal. Conflict can push people’s survival, identity and insecurity buttons, and can arouse intense feelings such as anger, distrust, resentment and fear. Rather than dismiss such feelings as irrational, unimportant or counterproductive, we need to welcome and be curious about the internal logic behind them and recognize that they are an indication of how much the conflict matters to them. To call people’s expression of emotion “venting,” and to take the attitude of “let the parties vent so that then we can negotiate,” is insulting as well as self-defeating because it disrespects the depth and importance of our clients’ feelings and ignores the fact that the parties’ feelings often hold the key to resolution of the dispute. We need, in other words, to see that human beings are in front of us, not a problem to be solved. Failure to honor and respect the people we’re working with as human beings inevitably undermines the entire negotiation endeavor.
The refusal to acknowledge, let alone grapple with, the emotional case tends to cause the legal and emotional cases to become conflated—and it is the conflation of the two cases that I believe is one of the primary causes of both conflict and impasse. The main reason for this is that when the legal and emotional cases are conflated, people are inclined to use legal means to accomplish emotional ends, which never works. A good example of this is a divorce case I mediated in which the husband shouted angrily at his wife, “I’m not paying her a penny in spousal support! She had the affair!” This tendency to use legal positions to correct past or present emotional injustices obscures the fact that there is no legal solution to an emotional problem. An emotional problem can only be resolved on its own terms; i.e., by an emotional solution, such as, in the above example of the cuckolded husband, an honest acknowledgment of the pain the affair caused and perhaps an apology.
Just as the repression of painful emotions pushes them out of mind but does not eliminate them, attempts to exile the emotional case from the negotiations are doomed to failure because people hold on to their feelings and grievances. Attempts to suppress or ignore people’s need to share their emotional truth and instead focus on rational analysis actually tend to inhibit rational discussion because what the participants care most about isn’t getting heard or addressed. As long as people’s emotional truth goes unrecognized, they will naturally resist, if not unconsciously sabotage, attempts to resolve only the legal case. The unaddressed emotional case will tend to remain in the mix anyway, mucking things up like dirt in a set of gears, preventing a more dispassionate assessment of the parties’ future needs, goals and options, if not precluding agreement entirely.
A major part of practicing law competently, then, requires that we differentiate the legal and emotional cases and in so doing recognize that the two cases have very different goals and methodologies. When working with the legal case, the point is to arrive at an agreement. When working with the emotional case, the point is not to arrive at an agreement, but at a connection. Resolution of the legal case usually means either vindication by a judge, settlement of a lawsuit or completion of an agreement. Resolution of the emotional case, on the other hand, usually has to do with recognition and acknowledgment of the emotional truth of one or both parties. The legal case, by its nature, requires methods that lawyers are already familiar with: rational analysis, problem-solving, creativity, attention to material interests, and so forth. The emotional case, by its nature, requires methods that have heretofore been relegated to the realm of psychotherapy, and has goals that are relational, such as recognition, connection and mutual understanding. The key is switching from one approach to the other as needed depending on which case is calling for attention at any given moment.
Many professionals use analytical thinking and problem-solving as a defense against letting the genie of powerful and painful emotions out of the bottle and having to navigate unknown emotional waters. Yet, if the parties’ pain is what the dispute is about at its core, I believe we have a professional and ethical obligation to explore that dimension with them. As the poet Rumi wrote some 800 years ago, “The cure for the pain is in the pain.” Such exploration is not about mere catharsis, but about helping our clients give voice to what matters most to them and about opening the door to the path most likely to lead not simply to agreement but to meaningful resolution. This is not something your thinking mind can figure out. But your heart can.
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