I just read an article by my esteemed mediator colleague, David I. Karp, titled “Unrealistic Expectations.”
In that article, David states that “unrealistic expectations can be a real stumbling block to the successful resolution of a disputed legal matter.” He then goes on to explain some reasons underlying “unrealistic expectations” and he explains how a well-skilled mediator will give the parties “the informed opportunity to consider the alternatives.”
It bears mentioning that “management of client expectations” greatly impacts how much a case will cost in legal fees (including mediation fees).
“The four main variables in determining how much a case will cost in legal fees are (1) complexity of issues involved; (2) management of client expectations; (3) level of conflict; and (4) choice of counsel.... Choice of counsel greatly impacts variables (2) and (3) and determines the process and approach used to address variable (1).”
“Management of client expectations” has to do with “unrealistic expectations” and helping the client to become more realistic.
I recently spoke with a lawyer colleague who complained to me that the opposing counsel on a case he is handling wants the case to go into mediation and he doesn’t think it’s necessary because he believes the case will settle as soon as opposing counsel properly manages her client’s expectations.
I told him that not all attorneys are equally skilled at managing their clients’ expectations, are uncomfortable doing so for various reasons, or they like not properly managing their clients’ expectations because they make more money not managing them.
Regardless, I told him that he was the problem in that case because it was he who had “unrealistic expectations” because he was expecting opposing counsel to do something she apparently can’t or won’t do. I told him that since she was suggesting that they go to mediation, she may have recognized her inability to properly manage her client’s expectations and known that the issue would be addressed in mediation. I told him that his refusal to attend mediation was the problem, in my opinion.
The best mediators, in my opinion, are those who can help the parties to see each other’s perspectives, understand them, and to imagine how they would feel if the shoe were on the other foot. The best mediators are also ready, willing and able to help the parties to see a great many other perspectives because the more perspectives they can see, the more likely they will be able to reach a mutually successful (collaborative) result, or at least a win/win (cooperative) result.
Getting people to perspective-take, which is the core of empathy, is not judging.
Furthermore, empathy is the key to conflict resolution. This involves emotional intelligence, at least on the part of the mediator. The higher the mediator’s emotional intelligence level, the better the mediator, in my opinion. After all, disputes are fact-based and conflicts are emotional.
You can try and address factual disputes in a manner that either escalates or de-escalates the conflict level. You can also address emotional conflicts in a manner that either escalates or de-escalates the conflict level. However, you need emotional intelligence to resolve or otherwise manage emotional conflicts.
Notice the fact that they both have the word “emotional” in them. Those who lack emotional intelligence or have low levels of emotional intelligence are not equipped to resolve or otherwise manage emotional conflicts.
This explains why lawyers tend to exacerbate the level of emotional conflict when trying to address factual and/or emotional disputes.
You see, it has long been known through much research that lawyers tend to have low levels of emotional intelligence. Don’t think that just because those lawyers become mediators or collaborative law practitioners, that they suddenly develop emotional intelligence through osmosis.
Emotional intelligence can be learned, but it essentially involves a “re-wiring” of your brain. As such, it takes a great deal of ongoing practice, in addition to leaning what is involved in “re-wiring” the brain.
Don’t ever forget that those who opt to enter the field of law tend to have competitive personalities, at best. This is also well-established. People with such personality types have issues with collaboration and empathy, which is an aspect of emotional intelligence and is related to collaboration, among other things.
It’s all consistent, when you think about it.