To Decrease Political Factionalism and Incivility, We Must Each Stop Passing the Buck

I had the most interesting lunch meeting this afternoon with two lawyer colleagues – a business lawyer and an employment lawyer. The three of us had attended a lawyers-only networking group meeting about a month ago and were assigned to have a mini meeting together.

I have known one of the lawyers since long before she became an attorney and don’t believe I had previously met the other attorney. From the very outset, they asked me about my research, writing and use of the social media. I responded that I spend at least a couple of hours a day reading articles, using the social media and writing. I then mentioned that my writing is often prompted by my getting perturbed over something. I then mentioned that I had recently published a three-part series of articles based upon an experience I encountered on a Facebook friend’s Facebook page. They asked about what the series addressed and I responded that it involved religion and politics, two topics that should never be discussed during business networking. They didn’t like my response, which showed in both of their faces, so I proceeded to tell them. For frame of reference, I’m referring to the articles titled Can Someone Not Be Homophobic If They Have Gay Relatives and Friends?, Who’s Responsible for Teaching Children Character Development and Social Skills?, and Parents Aren’t Helping Their Children By Willfully Keeping Them Ignorant.

While both attorneys are straight, they understood why I felt compelled to write the series and agreed with my assessment. One then asked why I remain Facebook friends with someone whose posts tend to get me all riled up. I responded that I think it’s important to understand other people’s perspectives and the reasons behind them even if I don’t agree with them and because it provides me with an endless source of topics to address and motivation for my research and writing. They loved my response because I was using such opportunities as teaching moments for the betterment of society.

The business attorney then segued into her perspective that the law, as practiced, is all about winning at all costs, which is incredibly destructive and fails to solve the actual problems. She mentioned that law schools train lawyers for such an approach because of how the legal system is designed. The other attorney completely agreed, as did I. In fact, I’ve been writing about such things for a decade. We all then discussed how and why we felt this way and it was all consistent with the information I’ve conveyed in a great many articles I’ve published.

I then commented that I believe that the law, as practiced, is a significant cause of incivility in our society. They both were in complete agreement. After all, if the way in which disputes are handled is not about problem-solving, but is an adversarial winning at all costs approach, it doesn’t take a genius to figure out the impact it would have on interpersonal relationships.

As soon as I returned to my office, I sent them the following email:

"We totally violated business networking protocol 101 by discussing politics and religion during our troika. And, I must say that I had a blast. I really enjoyed our lunch, our conversation, and getting to know both of you better."

One responded, "Likewise! Was a fun lunch!"

The other responded, "I also enjoyed our lunch and found the conversation thoughtful and intellectually stimulating. It was nice getting to know each of you a bit better. Have a magnificent week!"

I’ve noticed that such commentary by attorneys has become increasingly common. In fact, it was a pattern I noticed among both attorney and non-attorney members at the December 15, 2017 meeting of my ProVisors networking group. The discussion topic on that date was the following:

"If there were anything about your business or industry you could change, what would that be?"

I selected that topic and facilitated the meeting and discussion, as I do every December for that group. The comments tended to center about only a few common themes, which were as follows:

  • The need for increased transparency because of conflicts of interest, fraud, and ethical issues;
  • The importance of better education and training; however, the recognition that education and training alone aren't sufficient, which is why apprenticeships are so valuable;
  • The importance of a better public understanding of how any given system actually works, which leads to lack of proper planning, lack of satisfying compliance requirements, and suboptimal outcomes;
  • The fact that there is either too much or too little regulation because the regulations (laws) don't adequately address the problems for which they were designed -- lack of common sense. In the legal system, many of the attorneys commented that this resulted in game-playing more than anything else. It also leads to unclear boundaries and lack of suitable accountability, if any.
  • Laws are not fundamentally fair -- because that's actually impossible;
  • Establishing a healthy culture from the top down because that's how culture is set; and
  • The failure to address family dynamics and relational issues and how that leads to suboptimal results in a great many ways.

It bears mentioning that many of these problems can be circumvented through guided problem-solving, which is mediation - at least what I consider mediation -- and what I do for a living.

I also noticed some lack of understanding of certain realities from some of the comments.

For example, one attorney believes that family counseling is mandatory in family law cases. That's completely inaccurate and, if they were referring to "conciliation court", that's not what it is and it most certainly isn't mediation. In fact, this was addressed in my article titled Don’t Confuse Conciliation Court with Mediation, which Harvard Law School's Program on Negotiation shared and thanked me for writing.

Another example was the belief that humans are more logical than the research shows, which is that emotions -- not logic -- drive our decision-making.

In any event, these are only two of my most recent experiences with what appears to be a shifting paradigm.

Allow me to share a couple other such experiences.

On September 26, 2017, a sitting judge sent me the following email:

“My old friend **** is a senior litigation partner at #### [a major law firm with offices worldwide] and has been doing a lot of thinking about developing a collaborative dispute resolution process in the employment law area between workers with potential claims and employers. I told **** about the collaborative work you have been doing in the family law area for years. He would like to meet you to see if there are things he could learn from what you do they might work. I have provided each other's contact information.”

The two of us spoke and while we’re in completely different fields of law, our perspective was very much the same.

On November 17, 2017, an associate at another major law firm with offices worldwide sent me the following email:

“Hi Mark, Hope the past year has treated you well. A friend of mine just relocated to LA from the Seattle area, and is considering a new path in law. Her background includes working as a DA for several years, then at a firm focused on family law. The divisive nature of that practice area really took a toll, and she is looking to do something a bit more ‘constructive than destructive’ as you would say. That made me think of you immediately. Would it be okay if I she reached out to you to chat? At this point, she is just looking to gather insight from as many attorneys as possible before choosing what to focus on going forward.”

She sent me the following email after the two of us spoke:

“Mark, Thank you so much for taking the time to speak with me today about your experience in mediation. It was very enlightening and helpful to learn about the process and the challenges that can accompany it. I've located your article referenced during our call and look forward to reading it in detail. Thank you so much again for sharing your time with me.”

Experiences such as these give me hope that things are changing for the better because people are waking up to certain realities and not liking what they see.

All this being said, I can’t express the solution any better than the following by Harvard University’s Making Caring Common Project’s report titled The Children We Mean to Raise: The Real Messages Adults Are Sending About Values that was published in 2014:

“It’s no small matter that adults’ basic credibility is at stake if young people, with razor sharp alertness to hypocrisy view us as saying one thing while consistently prioritizing something else. Moreover, the costs of inaction are high, given not only the risks to both our children’s social, emotional, and ethical capacities and happiness but other threats, including increasing political factionalism and incivility at a time when we face huge problems that need to be addressed collectively ...
The solution is straightforward, but not easy. To begin, we’ll have to stop passing the buck. While Americans worry a great deal about children’s moral state, no one seems to think that they’re part of the problem.”

While the above quote pertains to something different, it applies equally well here for reasons that should become abundantly clear.

On January 3, 2018, a founder of a lawyers-only networking group sent out the following "need":

"San Diego 'Bulldog' Divorce Attorney
Potential client, with whom I have no direct contact, needs a 'bulldog' divorce attorney in San Diego, who can prevent his 'cheating, drug-addicted wife' from 'getting the house.' No children involved, just two angry people."

I responded as follows:

"Happy New Year.
Cheating isn't grounds for divorce nor is being 'drug addicted.' Divorce is 'no fault.' With all due respect, one of the reasons my 2018 New Year's Resolutions is to stop wasting my time networking with lawyers is for just this reason. This potential client's reaction is emotional and 'bull dog' lawyers take advantage of it. The ownership of the house is a division of property issue, meaning it's a trial issue. Community property is 50/50, assuming it's community property. If it isn't, then someone may have a larger ownership interest under the law. This isn't rocket science, but it is taking advantage of people's anger. By not providing potential clients with information with which they can make more informed decisions and not hurt themselves, referral sources actually harm them."

The subsequent exchange between us, which is included in its entirety below couldn’t have been more typical, which is the crux of the problem.

His response:

“Mark, I totally understand what you are saying. I did not talk with the PC [potential client] personally and received the quotes second-hand. I included them in the email so that any responders might know who they were dealing with. I had a hunch that to family law lawyers, the request for a ‘bull dog’ would provide some insight in to the type of client this person would be.”

My reply:

“It won't -- What it will do is cause the potential client and his spouse to bankrupt themselves because the lawyers to whom they are referred will take advantage of their emotional state. The proper response, in my opinion, is to provide the potential client with information regarding the harm caused by such an approach. These are the types of articles I publish regularly.
For example, while my most recent articles on the topic are published by coParenter, most apply equally well to people without children. My debut article was titled Why Court Really Should Be A Last Resort. The subsequent articles on that site can be found through my bio. I believe it is the role of the referral source not to harm people by letting them make uninformed decisions. If they are informed and then opt for a destructive approach, then refer them to such an attorney.”

His response:

“Who would you refer them to in San Diego?”

My reply:

“What I'm saying is that it is premature for me or anyone else to make an appropriate referral. The potential client is in a reactive mindset at present and the response should be that generally speaking, the approach that ‘bull dog’ attorneys take in family law matters leads to suboptimal results. Allow me to provide you with some information so that you can better understand why that is. If, after receiving this information, you still want a ‘bull dog’ attorney, I'll try and locate one for you. However, if instead, you opt for a different type of attorney or approach after considering this information and advise me of such, I'll be happy to try and assist you in locating suitable professionals to assist you in that regard.”

His response:

“I have no say in this matter. The client asked for a bulldog. If you know somebody in San Diego who will talk the client off this ledge, let me know and I will send the name.”

My reply which ended the conversation:

“I know. And, again, that's why I stopped attending your group’s meetings and have made a New Year's Resolution to focus my attention elsewhere. If everyone passes the buck, divorcing and separating parties end up in litigation. The pass the buck mentality is typical in the legal community, which is why I've stopped wasting my time.”

In conclusion and to re-quote from the above-referenced Report from Harvard University, “The solution is straightforward, but not easy. To begin, we’ll have to stop passing the buck.... No one seems to think that they’re part of the problem.”

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