We Tell Ourselves Stories in Order to Live
Mediation to Correct the Epistemological Error in the Adversarial Legal Narrative
We tell ourselves stories in order to live, wrote novelist and essayist Joan Didion.
The princess is caged in the consulate. The man with the candy will lead the children into the sea. The naked woman on the ledge outside the window is a victim or an exhibitionist, and it would be "interesting" to know which. We tell ourselves that it makes a difference whether she is about to commit a mortal sin or is about to register a political protest or is about to be snatched back to the human condition by the fireman in priests clothing. We look for the sermon in the suicide, for the social or moral lesson in the murder of five. We interpret what we see, select the most workable of the multiple choices. We live entirely, especially if we are writers, by the imposition of a narrative line upon disparate images, by the "ideas" with which we have learned to freeze the shifting phantasmagoria which is our actual experience.
Joan Didion, The White Album
The Rat Litigation
The small man in the incongruously meticulous three-piece suit and skullcap is sitting behind an enormous desk strewn with files, photos, pleadings, paper-clips and crumpled Styrofoam coffee cups. There is even evidence of yesterday’s lunch or last night’s late snack – a Fiestaware salad plate smeared with the congealed remains of something unidentifiable.
Mr. Segal’s face reddens as he stabs his finger repeatedly into a yellow legal pad that carries his firm’s embossed name.
“They disrespected my niece,” he is repeating, his voice rising with each iteration. “She grew up in Budapest. She knows something about rats.” He is sputtering now, on the verge of losing the professional demeanor I am certain he values.
“And that fake Jew,” he snarls, “The Company’s lawyer. His client disrespected her and now they’re disrespecting me.”
It is nine o’clock on a warm Los Angeles morning and my business day has just begun. Mr. Segal’s Santa Monica law office has one of those unexpectedly magnificient ocean views – the kind that make you feel guilty about an unmerited grace. The counterpoint between ocean, swaying palms and joggers in brightly colored sweats on the Palisade and Mr. Segal’s claustrophobic office is unsettling.
Open boxes spill out exhibits from his last trial and colorful graphic boards lean against the wall. He has already explained the trial victory these graphics helped him achieve – one of numerous injustices rectified by a Los Angeles Superior Court jury.
The Adversarial Legal Narrative
I used to be in the business of telling these stories myself – pushing the square pegs of my clients’ actual experiences – the shifting phantasmagoria – into the round holes of the pre-determined American legal conflict narrative. Duty, breach, proximate cause, damage. Now, as a mediator, I listen for character and plot, theme and moral, reliable and unreliable narrators, and, most importantly, character.
Writers have long known that we impose narrative lines on our often random experience. Told with hope, these stories weave nets to catch us when we fall; braid ropes to throw out our prison windows; forge keys to unlock the doors that separate us one from another.
Fake Jew. The raw emotion of this epithet startles me, though it doesn’t surprise me. I’ve met with Mr. Segal, counsel for his Eastern European niece, once before. We exchanged pleasantries about the neighborhood in which we both live – one with a large Orthodox and Ultra-Orthodox population. He knows my husband is Jewish and that I am not. According to Mr. Segal, “with all due respect,” I and those of my cross-marrying kind will eventually be responsible for the destruction of world Jewry. I’m easy-going on this topic and have not taken offense.
Meta and Master Narratives
With Mr. Segal's "fake Jew" accusation, I've hit mediation pay dirt. He'd already alerted me to the “meta” or “master” narrative that might have transmogrified this small claims case into a hotly contested Superior Court action. A narrative of a community splintered and in danger of destruction. This additional comment reminded me of just how important this interest was.
The “meta” or “master” narrative is the national and religious story that shapes the way we think and live. It acts as a lens through which the “dominant” culture perceives itself and in opposition to which ethnic, religious and other sub-cultures are defined.
Social psychologists tell us that we all make use of this cultural stock of stories. In novel situations, we browse more or less consciously through them to find one or more narratives that fit -- or can be adjusted to fit -- our own experience.
Narrative Mediation: Behind Every Accusation is a Plea for Help
After hundreds of years of civilized legal “combat,” mediators have arrived on the scene promoting the seemingly dubious proposition our national legal “conflict narrative” has become too costly for us to bear. These narratives, we say, can be harmonized. The victor need not, and in any event cannot, take all.
Mr. Segal is waiting for my response to his accusation, the personal insult flung at opposing counsel, Mr. Klein. I know that Segal is disposed to trust me. I’d accepted his criticism with humor (“wow, I had no idea I had enough power to destroy 5,000 years of Jewish history – I just thought I’d watched too many Woody Allen movies”). More importantly, I’d accepted him the way he was -- the absolute pre-requisite to trust. I was also keeping in mind the advice given to me by mediator and author Ken Cloke – that “beneath every accusation is a cry for help.”
“I’m taking a class in Religion and Conflict Resolution,” I say, casually, partly to bring down the emotional temperature in the room, and partly to get a grip on the role Mr. Segal’s Jewish “meta” narrative is playing in the “Rat Litigation.” “We haven’t gotten to Judaism,” I say. “What does the Torah say about peace-making.”
Mr. Segal’s mood shifts immediately. The anger drains out of him. Not only is this a comfortable topic, it’s something he knows a lot about. Anger, we are told, consolidates our sense of self when we are feeling threatened or anxious. Remove the threat and anger dissipates. Self-respect can be retrieved.
Mr. Segal smiles for the first time that morning. “Peace,” he says, softly. “The Torah requires us to seek peace.” Obviously, he’s had this discussion before because he quickly adds, “but only among fellow Jews. We’re not required to seek peace with anyone else.”
"A Corporation Can't Take Litigation Personally"
I thank Mr. Segal and ask for the list of his niece’s damaged items. I head down the hall to the conference room where Mr. Klein, litigation counsel for the defense, and his client, wait for me. Both snort derisively when I provide them with Mr. Segal’s demand. The lawsuit is “frivolous.” Mr. Segal, they tell me, thinks the defense bears him a grudge. “Ridiculous,” they say. “A corporation can’t take anything personally. It’s not a person."
Mr. Klein pulls a sheaf of papers from his briefcase to show me the documents that “establish beyond doubt” the defense will prevail. I examine the papers. They’re ambiguous. We all know if it’s being litigated, it’s neither “clear” nor “obvious.” Anything can happen. This assertion of certain victory has become something of a ritual. No one is expected to take it seriously.
It's About Rats
“It’s about rats,” I say. “The jury consultants tell us that three things make predicting the range of a verdict all but impossible – children, cancer and snakes. I think rats might be the same as snakes.”
I can feel the ground shift beneath the feet of Mr. Klein and his client. They’d been certain I’d agree with them. Mr. Segal is so clearly the problem. They aren’t taking it “personally,” of course, but they are “outraged.” The suit is extortionate. The discovery sanctions – more than the case is worth -- are being appealed. They will win at trial.
“Mr. Segal,” says defense counsel, “is a bully. He’s like an Israeli soldier in a Palestinian refugee camp.”
Another accusation. Another request for help. How would Palestinian refugees feel, I ask myself, herded into camps and faced with a show of force. Vulnerable, certainly. Victimized. Mistreated. Misunderstood. Angry. Afraid.
The defense will not make a counter-offer. Mr. Segal's demand is so outrageous that they'd be "negotiating against themselves."
Mediator Response to Frustrated Early Termination of Proceeding
Mr. Klein and his client begin to loudly slam their notebooks, papers and PDA's into their brief cases. International sign language for "we’re outta here.” Though I don’t think further discussion will lead to settlement, I can’t help but feel we still have business to do.
“I like to be helpful,” I say softly to Mr. Klein and his client as they prepare to leave. “I’m sorry I was unable to help you resolve the litigation. I can, if you would like, try to help the parties proceed without further unnecessary acrimony.”
“What is this,” Mr. Klein snaps, “some kind of new age trick?”
“No,” I say, “just a question. If you think the litigation might proceed more efficiently in a cordial atmosphere, I’m happy to help.”
“This is Mediation 101,” Mr. Klein says, looking toward his client for affirmation. “Keep the parties talking. I have no intention of wasting my time on whatever new age tricks you’re trying to play.”
It would be easy for me to give up at this point. I am not, after all, being paid for this Superior Court pro bono case. I also worry about being type-cast as a psycho-babbler – a particularly damaging image for someone trying to develop a “hard-headed” commercial litigation mediation practice.
Mr. Klein interrupts my silent meditation.
“But how could I say ‘no’ to your request? It wouldn’t be politically correct now would it?”
“Be honest,” I remind myself. “Give him P.C. and you’ve lost him. Give him P.C. and you lose the entire point.”
“I don’t think political correctness is the issue,” I say. “Some people think its better to be acrimonious. It makes it unpleasant to litigate. People settle faster and for less.” I pause. The client must be concerned with the sanctions award and the attorneys’ fees for the appeal. Mr. Klein must be concerned about his role in this mess. I don’t want to leave him defenseless – like a Palestinian in an Israeli refugee camp. I’d had plenty of acrimonious litigation myself, hadn’t I?
“I’ve done it myself,” I say. “It’s a tactical, not a moral, issue. It’s a choice.”
Mr. Klein and his client turn to one another for a quick whispered conference. “O.K.,” they both nod.
“You won’t get anywhere,” warns Mr. Klein. “But go ahead and try.”
Aplogies, Moral Men and Moral Acts
Back in Mr. Segal’s office, my arrival is met with a flat, “you want me to apologize.” I shrug and smile ruefully.
“There’s nothing to apologize for,” he says, beginning to redden again.
“Disrespect,” he reasserts. “It’s not about me. It’s about my niece. It’s about family” -- this last from the Godfather stock of cultural narratives -- with a Tony Soprano inflection.
We both know what we were talking about. The last telephone conference between counsel ended with an exchange of insults and profanity. “Is he going to apologize?”
“I think he’ll be willing,” I say, believing it.
“That was wrong, telling him to go “%$&@# himself.” But the reason I said it remains valid. That wasn’t wrong. So, no. No apology.”
I look out the window. The wind has picked up and morning’s joggers have given way to noon-time strollers. Two college kids are kissing on a park bench. Am I looking to “win” this mediation by “fixing” something, anything, for the litigants? I don’t think so. I believe I'm trying to do what I think is part of my new job.
I turn back to Mr. Segal. “Mr. Klein is Jewish?” I ask, remembering Mr. Segal’s insistence that Jews need only make peace with other Jews. He knows where I’m going. He doesn’t need to say “yes,” but he does. He had, after all, accused his opponent of unraveling the fabric of Jewish history. This isn’t just about violating the rules of legal discourse. It’s about identity and community.
“I think you’re a moral man, Mr. Segal.” I say. “And I believe today is one of those days that the Torah calls upon you to engage in a moral act.”
With that, he stands up and straightens his tie. He says, simply, “let’s go.”
The Epistemological Error of the Adversarial Legal Narrative
It is one of those moments other people tell you about but you never expect to experience yourself. It’s one of those times, as Joseph Campbell wrote, “when we break through to the metaphysical truth that we are one.” All else – the perception that we are separate and independent, that our interests are pitted against one another, that one side of the ship can sink to the ocean floor while the other stays afloat – is what the philosophers call an “epistemological error.”
It is a mistake in our understanding of the fundamental way in which the world works.
The law, of course, is premised on this epistemological error. As lawyers, we are educated, trained and experienced in it. The corrective? Complementary story telling -- the re-framing of these “conflict” narratives into stories premised on mutual interest. Tales in which the parties hold themselves, and one another, accountable for the creation of mutual harm. In the face of the cynicism of the age, narratives with happy endings for hero and villain alike.
Lawyers and their clients bring us – the mediators -- tales of mistrust, betrayal, trauma and miscommunication. Whether they know it or not, they are relying upon us to be patient enough, to be courageous enough and to be attentive enough to locate the more profound relational truth lying just outside the frame, beyond the open window, around the corner from the woman standing naked on the ledge. A story in which the parties’ concern for one another’s welfare is united with their own self-regard and well-being.
That story is the key to wisdom’s door, the secure web that connects us, and the rope thrown out the prison window that sets us free.