Communication in Legal Advocacy

Chapter 1

DISPUTE RESOLUTION

From time to time we read of successful people who close out their affairs and escape to some isolated location on a ship, desert island, or mountaintop. When asked, they frequently reply that they just had to get away from the daily grievances that come with living in the modern world. They have found their resolution, but the rest of us cannot get away that easily. We need to learn to deal with grievances and go on living with other people.

Our society has created a variety of ways of dealing with grievances in acceptable ways, and the trial at law is probably the most formal and well developed. Trials, viewed in terms of the communication processes they involve, constitute the focus of this book. However, in order to understand trials, it is first necessary to look at some of the other ways our culture allows us to resolve our disputes with other people. The purpose of this chapter is to examine the basic nature of human disputes and the processes of negotiation, mediation, and their variations.

Just what do we mean by the term grievance? First, we need to call to your attention some common situations that could constitute the start of a grievance. For example, have you ever had someone shove ahead of you in the check-out line at a store? Did you ever feel the flush of anger as you were pushed aside on the sidewalk so that someone else could pass? What would you do if your neighbor’s dogs barked day and night and kept you awake?

These incidents seem trivial to you, perhaps. So, think of some that might arouse your attention. For example, would you be upset if the dump truck in front of you hit a bump, causing a rock to fly off and drive a deep crack in your windshield? Or maybe you would begin to feel a sense of grievance if you saved up and bought a new car only to have it go wrong every two weeks so that you constantly have it back in the shop. Is it any of your business if your neighbors, the same ones who own the dogs, get drunk every Saturday night, yell at one another, and occasionally get into a fight on the front lawn?

Now, maybe you begin to see what we mean by grievance. Things can get worse. What do you believe should be done if your boss installs a new office machine and tells you to use it without giving you safety precautions, and you almost cut off your finger using it? Or should something be done when you have an operation on one finger only to discover that you have lost the sensation in the entire hand? If you know it was the neighbors’ thirteen-year-old son who broke into your garage and took your bicycle, but they deny it, what do you do? Or, what if a fire truck comes into the intersection against the red light so that you hit it, and you feel it should have gone more slowly; is there any way to seek relief?

Each of these situations presents the possibility of a grievance, a circumstance or condition thought to be unjust and ground for complaint or resentment (Webster’s New World Dictionary 1965). But would you issue a complaint in each one? Under what circumstances would you just feel resentment but do nothing?

In many cases people choose to ignore, shrug off, or otherwise refuse to make a complaint. Most of us would let the man shove us aside on the street without saying or doing a thing. Many would just continue to wait quietly while the clerk served the rude woman. Surprisingly, many Americans would not make a formal complaint about the barking dogs, the chip in the windshield, and even the fighting neighbors, although they might talk among themselves about the dogs and the fighting, and ultimately talk with the neighbors.

The fact is that our image of Americans as people who jump to complain about every slight and go to court with any grievance is simply not supported by recent studies. Instead, the research describes people who advocate talking directly to each other and taking care of problems themselves (Merry and Silby 1984).

However, sometimes grievances do become disputes (in labor-management practice disputes are called grievances). Think of a dispute as any situation in which someone (plaintiff) asserts a claim for some injury against someone else (defendant) (Priest and Klein 1984). Or a dispute could be defined as a matured controversy, in contrast to a grievance, which may remain inchoate and unexpressed (Sander 1985).

Once you determine to do something about a grievance—once you choose to define it as a dispute—it becomes necessary to select some means to resolve it. Now, of course, the other person or persons become involved. You are not free to resolve the dispute by yourself if you have chosen not to let it remain merely a grievance. Society and culture influence the range of dispute resolution mechanisms available to you.

Violence and communication compete as basic methods of dispute resolution. Violence, while considered a relic of less civilized times and places, is still employed with frightening regularity in the United States. Drivers on Los Angeles freeways are shot at and sometimes killed by other drivers who are aggrieved by some driving experience. Fights still occur over disputes and people are killed and wounded. Killing is still chosen as a means of removing annoyances both canine and human. Some loans are collected with the help of brute force.

Communication, however, is the socially approved medium of dispute resolution. It presents itself in a variety of systems, which will be the focus of the rest of this chapter.

METHODS OF DISPUTE RESOLUTION

In contemporary parlance the range of dispute resolution mechanisms is divided into two categories: adjudication, or the use of courts on the one hand, and what are called alternative dispute resolution methods (ADR) on the other. Since formal trials occupy such an important place in our society, all other methods of working out disputes fall in the category of alternatives. This probably reflects more the fact that the concept ADR is a creation of lawyers whose primary orientation is adjudication than the frequency with which the methods are used or their importance to ordinary people. Nevertheless, that is the system we will employ. Since this book is devoted to a detailed discussion of communication in adjudication, we will begin with the alternatives and work our way toward adjudication.

To start, consider the various methods of dispute resolution in relation to each other. Sander (1985) considers the two extremes of dispute resolution to be adjudication at one end and avoidance at the other. Goldberg, Green, and Sander (1985) use the colloquial expression lump it—as in like it or lump it—to refer to the process of avoidance, leading to a rephrasing of Sander’s extremes as lump it or litigate it. Either shrug off your feeling of grievance and go your own way or find a lawyer and file suit.

There are, however, other alternatives to litigation than avoidance. Next to avoidance is negotiation. Following that as we move toward litigation is mediation or conciliation. The use of an ombudsman or some other fact-finding or investigation agency does not fall along this continuum, but falls below it as an adjunct to many of the resolution mechanisms in Sander’s scheme. There are, as we approach even closer to adjudication, such methods as administrative agencies which serve to resolve disputes, and finally there are various forms of arbitration.

What are the criteria of the continuum we have suggested? In what way do we explain the relationship we have just suggested among the various approaches to dispute resolution? Let the trial set the criteria, and let the continuum indicate a gradual movement away from those criteria.

In a trial disputing individuals are assured of a socially sanctioned public dispute resolution process which will involve the opportunity to present proofs and arguments in their own behalf and a third party with coercive power who will determine a winner by focusing narrowly on immediate matters at issue without regard to the underlying relationship between the parties (Sander 1985). So the criteria we use are these:

A socially sanctioned process of dispute resolution

Open to public scrutiny

Communication of proofs and arguments

A third party

Coercive power held by the third party

The determination of winners and losers

A focus on issues immediately in dispute

No concern for underlying relationships

These are the elements of adjudication at one extreme of the continuum; avoidance, at the other end, has only the one characteristic of being a socially acceptable if not sanctioned means of resolving disputes.

Negotiation is a socially sanctioned process of dispute resolution that presents an opportunity to communicate proofs and arguments. It is not open to the public; it does not involve a third party or coercive power; and it does not allow for a declaration of winners and losers. It may or may not be focused on issues immediately at hand, and it may or may not address underlying relationships.

Mediation/conciliation is also a socially sanctioned process of dispute resolution that presents an opportunity to communicate proofs and arguments. It is not open to the public, nor does it involve coercive power. It does, however, bring into the dispute a third party, who will not determine winners and losers but who will assist those in dispute to address either the issues immediately at hand or underlying relationships or both.

Administrative hearings are public, socially sanctioned dispute resolution methods that involve third parties with some coercive power and the ability to address to some extent the issues at hand as well as other issues the hearing officers may initiate. Hearings do not consider underlying relationships and typically declare winners and losers after hearing proofs and arguments. They will also involve the consideration of other facts, proofs, and arguments than those presented by the immediate disputants.

Arbitration is a socially sanctioned dispute resolution method that gives disputants the opportunity to present proofs and arguments to a third party, who may or may not have coercive power. It is typically not open to public scrutiny, and it will consider immediate issues as well as some underlying relationships and finally declare a winner.

We will discuss and illustrate each of these alternatives to the use of the courts, and close the chapter with an overview of the trial process.

AVOIDANCE: LUMPING IT

Merry and Silby (1984) wanted to know why people use alternative methods of dispute resolution so infrequently. Their previous research had suggested that people in small towns prefer to handle interpersonal problems by themselves, either by talking or avoidance. So they studied people in small towns on the theory that disputes are cultural events with clear rules about what is worth fighting over.

They found that different communities with different cultural rules will respond to disputes differently. They learned that people in general prefer to handle disputes themselves with such avoidance tactics as building fences and looking the other way. When neighbors do enter into a dispute, they are likely to be criticized as troublemakers; they tend to be seen as violating the sense of privacy in the neighborhood. On the other hand, those in lower-income towns with more transient residents feel freer to bring disputes to the courts, even though they report no more grievances than those in other towns.

Some cultural patterns include avoidance of disputes as desirable, respectable behavior. Other cultures seem to value dispute behavior per se. At the University of Utah part of the faculty had been trained as debaters and others as therapists. When a disagreement emerged in department meetings, the debaters would begin an argument that would frighten and embarrass the therapists. The therapists felt that the vigorous arguments were in bad taste, while the debaters could not understand the objection. If a debater disagreed with a therapist, the therapist would seek to avoid further discussion.

Even though a clearly damaged product can easily be returned to the store for replacement, many people will avoid that course simply because they do not relish an interaction with the clerk that may involve disagreement. Many of us have loaned money or other items to friends who fail to return them, but we will not raise the issue lest it turn into a disagreement that might damage our friendship or be embarrassing.

Lumping it, then, is perhaps the most common form of dispute resolution, at least among some cultures. But even in those cultures some disputes demand another tactic, and the one to which people will most frequently turn is some form of negotiation.

NEGOTIATION

Negotiation is the preeminent mode of dispute resolution (Goldberg, Green, and Sander 1985). If you say to the woman who has pushed in front of you at the cashier’s desk, Excuse me, but I believe I was in line ahead of you, and she says, I beg your pardon, and steps back, you have negotiated. She might also reply, I’m sorry, I know you were ahead of me but I am desperate to pay for this and get outside before I get a parking ticket. Will you let me go on? She is negotiating, and you might willingly allow her in front of you, feeling better about the whole situation than before your interaction.

In times past, negotiation has been seen as a rather stylized process of offer and counteroffer leading to a mathematically predictable, mutually acceptable settlement (Siegal and Fouraker 1960). The assumption was that of game theory: Each party to a negotiation perceives the other as an opponent who has a rational goal (maximum payoff/minimum loss) and a limited and knowable set of moves by which to obtain that goal. Thus each player knows fully in advance of negotiation where the other is going and how they can get there. Given this situation, each player can plan moves and countermoves within a range of acceptable settlements and come to a point in which the joint payoff is maximized. In this view communication is unnecessary, and is even an impediment to the discovery of the best settlement.

Take for an example your complaint about your car which you believe to be a lemon. In contact with the manufacturer you want a new car without further payment (maximum payoff/minimum loss), and the car company wants you to accept the car as is without further obligation on their part. In a game theory view you two make moves: you ask for a new car, they offer nothing; you ask for a new engine, they offer to fix the present one; you ask for repairs on the present one with an extended twelve-month warranty, and they accept. Negotiation is thus completed without communication beyond offer and counteroffer, and the outcome is predictable in the sense it involves the best gain with least cost for both parties.

Today scholars are more likely to see negotiation as the way in which people come to their understanding of themselves, each other, and their environment. It is common to hear the suggestion that we negotiate or socially construct reality (Berger and Luckman 1967; Putnam and Bullis 1986). Walton and McKersie (1965) argue that people are not as objectively rational as the game theory model suggests. For example, if the woman at the store had merely glared at you and continued to shove ahead, you may have insisted on your place in line even though you were in no hurry. Your need to go ahead or let her go first was not determined in advance but was instead a product of the interaction. Thus your payoff and costs could not have been calculated in a game theoretical manner.

In actual negotiations people consistently violate what would be objectively rational minimum or maximum acceptable settlements (Smith 1983). Fairness, for example, is an important concept that cannot be quantified in terms of dollars and cents. Anger, friendship, the desire to maintain good feelings, and other equally abstract motives play a part in negotiation. Smith (1983) views negotiation as a process of mutual exploration during which people seek definitions of issues and experiences. It is a process through which values and meanings emerge so that they can be shared by those negotiating.

Parties in negotiation communicate in order to interpret the other’s position and future moves, and in so doing construct a new collaborative social reality. Shared meanings develop through revised expectations and interpretations coming from two or more distinct realities (Putnam and Bullis 1986).

To enter into negotiations means that you have chosen not to lump the dispute. You want some resolution, and presumably you want it to work in your favor. However, keep in mind that the very act of negotiation itself may be all you seek. You want the satisfaction of having presented your position to someone who understands and respects it. You want a clear settlement of the dispute—it is too important to ignore—but you may only want it clear that the resolution required your participation. The woman at the cashier’s counter was shoving ahead of you and you really were in no great hurry, but you at least wanted her to understand that it was your turn and you were willingly letting her go first.

Negotiation is an interaction in which participants want to cooperate so that a settlement is reached, but at the same time they are competitors with regard to the specific nature of the agreement (Coleman 1980). Because of the competitive elements in negotiation the use of bargaining agents has grown common for a number of reasons. First, in spite of the fact that we apparently engage in ongoing negotiation as we socially construct our meanings or reality, not many of us feel competent to engage in serious negotiation. This becomes particularly true, second, when one side has an experienced and competent negotiator. Even fewer of us feel able to hold our own in the face of a professional, even though we continue to try to negotiate with merchants who are professional negotiators. Third, effectiveness in negotiation is enhanced if you are not negotiating for yourself. For these and other reasons lawyers spend a good deal of their time acting as professional negotiators.

LAWYERS AS PROFESSIONAL NEGOTIATORS. If it were measured in terms of amount of time spent, negotiating would probably constitute the primary activity of lawyers. It is the responsibility of lawyers to resolve their clients’ disputes in the most simple and economical way, and that usually means some form of settlement achieved through negotiation. Although they are not typically trained in the process, lawyers have become professional negotiators through identification with dispute resolution and practical experience.

Williams (1983) surveyed practicing lawyers and learned that about half considered themselves to be effective negotiators. Almost 90 percent of those who felt competent characterized their approach as cooperative, listing these criteria in order of importance: (1) conducting self ethically; (2) maximizing settlement for client; (3) getting a fair settlement; (4) meeting client’s needs; (5) avoiding litigation; and (6) maintaining or establishing a good personal relationship with the opponent. Those who perceived themselves as competitive listed this order of criteria: (1) maximizing settlement for client; (2) obtaining a profitable fee; (3) outdoing or outmaneuvering the opponent.

Jacker (1982) has written and lectured extensively on lawyers negotiating, and he provides rather specific advice. For example, the location in which the negotiation is to be held, the number of people on each negotiating team, the amount of authority they have to make binding agreements, the time of day at which negotiation occurs, and the nature of the agenda all receive comment in terms of advance planning. Prior to actual negotiations Jacker recommends that practice sessions or simulations should be conducted. Identifying the issues, with the possibility of putting focus on potentials for settlement through the preparation of an agenda, is a powerful move early in the interactions, he says.

Coleman (1980) surveyed the literature on successful steps in negotiating and generalized four rules.

1. Make a high initial demand and yield from it. Since the objective of distributive (competitive) bargaining is to discover the other party’s best offer without revealing your own, it makes sense to start high lest you fail to ask for the maximum possible. Of course, the other party knows this is what you are doing, so a good deal of deceptive communication will occur while each side tries to learn without revealing. From a communication perspective, careful listening and attention to analysis of the interpersonal situation seem appropriate.

2. A balanced pattern of concessions should be employed. The pattern of concessions communicates to the other side, and like bidding in bridge or other card games we sometimes want to reveal and sometimes conceal. If you begin by asking for $1,000,000 and your first concession is $50,000 and the next is $100,000, the other party will be cued to continue pushing for concessions. On the other hand, if your first concession is $100,000 and the second is $50,000, you will send a signal that within a few steps you will probably reach your resistance point after which no further concessions can be expected. However, if your next concession returns to the $100,000 figure, a mixed message will be sent. If confusion is your goal, you will have succeeded. With the exception of hard-ball tactics under the label of commitment, discussed shortly, most negotiators are expected to provide some concession from the initial position to communicate a good faith approach to the process.

3. Retraction of concessions is not allowed. In practice lawyers read each offer as binding. They will not consider you an ethical negotiator if you try to withdraw an offer once it is made.

4. Bargain in good faith. Essentially lawyers expect that everyone involved will play the game, which is to obtain the settlement of a dispute to the overall best interests of their respective clients. If a lawyer seems to be bargaining more for personal gain or other motives not considered proper, the legal community will begin to refuse to negotiate with that person at all. Since negotiation constitutes so much of a lawyer’s work, there are codes of ethical conduct that have been published to guide the process (Goldberg, Green, and Sander 1985).

COMMITMENT. Communicating commitment is crucial to success in negotiating (Schelling [1960] 1980). Except in the most open and cooperative of situations, as long as the other parties believe you will make further concessions they will continue to push for them. Once they believe you have truly stated your best and final offer, they will probably stop or dramatically reduce their demands, assuming you have reached a point that is within their range of acceptable settlement. Children, says Schelling, have the marvelous communication device of cross my heart and hope to die. When the other kid says that, we know there is commitment. Too bad adults lack that.

Adults need to work out other ways of communicating commitment. When the lawyer can say, My client may be crazy but I am simply not authorized to offer one cent more, commitment may be communicated. More commonly lawyers actively prepare for trial and establish a reputation as a person who willingly goes to trial and frequently wins. Then they can achieve commitment by saying, Accept this offer or meet me in court.

This and similar statements may at times be nothing more than a bluff designed to learn what is truly the other side’s best offer (Putnam and Jones 1982a). But lawyers do not rate deceptive communication as a highly valued practice (O’Rourke and Sparrow 1983), and society typically condemns deception in spite of continued use (Knapp and Comadena 1979). So even though bluffs and other deceptive techniques may be used and may sometimes be effective, as often as not deception by one side will be answered by deception from the other, yielding no progress toward resolution. On the other hand, honesty by one side may secure honesty in return, leading more directly to integrative resolutions (Putnam and Jones 1982b).

A lawyer who is known to be rarely in court and to be relatively ineffective as a litigator cannot use the see you in court form of communication. However, even that lawyer may communicate commitment by refusing a substantial offer. This may have the same effect as that made by a notoriously bad poker player who suddenly bets the limit; the others may believe this time he or she is holding a pat hand.

At any rate, one major communication task is to learn how to communicate what will be perceived as an honest commitment in each situation. There are no rules that can be presented because perceived commitment will depend upon the specifics of each case and the people involved.

Having said that communicating commitment is central to successful negotiating, we must now note that achieving flexibility is also a major goal. Jacker (1982) argues that there is value in leaving the bargaining agent free to develop creative solutions to the dispute. This will be particularly valuable in achieving an integrative agreement that addresses mutual needs and satisfaction and seeks a mutually desirable resolution.

ARGUMENTATION. Argumentation is a central element of any negotiation situation (Keough 1987; Walker 1986). When people sit down to negotiate, they will proceed by generating reasons in support of their claims, and the resulting argumentation will play a key role in the final resolution.

Arguments involve assertions, or claims with reasons attached to justify them. According to Bacharach and Lawler (1981) bargaining is an interaction involving the management of impressions, manipulation of information, and generation of perceived power, and argumentation is the mechanism by which that work gets done.

Arguments can alter others’ preferences and perception of the consequences of agreement or disagreement. They are used to make clear the constraints impinging upon the parties. If you are alone in the car when the rock flies off the truck and breaks your window, you will have a hard time arguing the issue of fault. If a passing driver sees the rock fly and motions you over to say she will be a witness to what happened, you suddenly have a strong argument.

Trying to blame the fire truck for being in the intersection when you hit it presents a tough problem in argumentation. Without more to go on, you will probably be ignored. However, if you have a police report saying skid marks indicate the truck was going 40 miles per hour through the intersection and a copy of Fire Department Policies and Procedures that says no truck may pass through an intersection against the red light at more than 15 miles per hour, you have an argument.

Bacharach and Lawler’s (1986) dependency theory of power says one-sided dependence creates one-sided power relationships. You must create arguments to change power relationsips in order to increase the chances of a negotiated settlement. Negotiation frequently involves one-sided dependence, such as between you and the city government or a big business. You depend upon them totally to get satisfaction, but they need nothing from you. Without arguments that can command a response, you may not even get the powerful party to enter negotiations, much less come to some resolution other than telling you to go away.

Argument does not necessarily suggest a competitive or antagonistic situation. The word may mean either an angry, competitive exchange or reasoned discourse in the spirit of a cooperative search for solution (O’Keefe 1977, 1982). While negotiation is often seen as a competition to get the largest share (distribution) of a limited amount of goods, it can also mean the joint search for integration of interests (Fisher and Ury 1981). Integrative solutions are more likely to result if you (1) separate people from the problem; (2) focus on interests not positions; (3) invent options for mutual gain; (4) insist on objective criteria; and (5) know your best alternative to a negotiated agreement, or BATNA.

Pruitt (1983) sets out some other techniques of negotiating integrative agreements. (1) Expanding the pie is a process of arguing that there are more resources to be distributed than seem apparent at the outset. (2) Nonspecific compensation is including in the settlement some payment that is not part of the actual costs of the dispute. (3) Logrolling involves agreement on low priority issues in exchange for concessions on more important issues. (4) Cost cutting involves finding some form of specific compensation that can help one side make a concession. (5) Bridging is the process in which neither side gets what it initially demands, but rather a new set of options is found that will satisfy everyone’s basic interests.

MEDIATION

Until the latter half of the twentieth century, when a dispute became formal enough to involve lawyers there were two principal modes of dispute resolution: negotiation and litigation. Indeed, the two modes were used together. Often neither party would initiate settlement discussions lest they appear weak and afraid of trial. So the approach of the trial date served as the eleventh-hour force to bring them together. At times the trial judge would serve as an initiating factor, suggesting that the opponents meet to discuss