Forgiveness 101 Condoning poor behavior v F or getting what - - PDF document

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Heartland Mediators Association April 26-27, 2018

Forgiveness 101

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Condoning poor behavior

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F

• r

getting what happened

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Minimizing the injur y

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Dependent on r eligious belief or pr ac tic e

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R ec onc iling

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v

Cr eating a new stor y

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R esolving blame, anger and r evenge

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F

• r

you (not the per son who hur t you)

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L ear nable

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A c hoic e v T

alking Re spo nsibility

v Ac c o untability/ Justic e v Se lf-pro te c tio n §He a rt a tta c ks §Ca rdio va sc ula r dise a se §Hig h b lo o d pre ssure §Musc le te nsio n §Stre ss §De pre ssio n §Ho pe le ssne ss §Ca nc e r

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§ Ca rdio va sc ula r syste m:

• L
• we r he a rt ra te
• L
• we r b lo o d pre ssure

§ Ne rvo us syste m § I mmune syste m § Ab ility to think c le a rly a nd c re a tive ly § L e ss stre ss

• I

NCRE ASE D:

• Ho pe
• T

rust

• Ha ppine ss
• Gra titude

vBilateral vUnilateral

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vF

• rgive ne ss is e xc hange d o n an apo lo gy o r

de mo nstratio n o f re mo rse

vQuid pro quo vRe quire s partic ipatio n o f bo th pe o ple vF

• rgive ne ss is o nly po ssible if the pe rso n who

c ause d the harm satisfie s the c o nditio n o f apo lo gy/ re mo rse

vPrimary be ne fit is re sto ratio n and he aling

be twe e n tho se invo lve d, and it c an se rve as pre c urso r to re c o nc iliatio n

vPrimary drawbac k is the o ne who c ause d the

harm has all the po we r, so it’ s no t always available

vForgiveness is undertaken by one party alone vRequires nothing of the other person v Forgiveness is unconditional vPerson harmed has the power to forgive if

they so choose

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vPrimary benefit is that it is always available,

profoundly healing for the one doing it and there are no drawbacks

vCan serve as a precursor to bilateral

forgiveness

}Ethics of Forgiveness

v Zealous Advocacy

v Fiduciary Duty v Conflict of Interest v Client’s Best Interests v Role of Lawyer

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vThe fundamental principle of lawyering:

“As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system.”

Preamble to ABA Model Rules of Professional Conduct vTrue meaning is to identify and zelously promote the

client’s ’s b best i interests

v Model Rules make clear that best interests are not

limited to narrow legal concerns.

Comment 2 to ABA Model Rule 2.1

“Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. . . . It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice.”

Comment 2 to ABA Model Rule 2.1

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Used to justify scorched-earth tactics

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The bulwark of hyper-aggressive litigators

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Narrow interpretation misses a more nuanced consideration of the client’s needs

Lawyers owe a fiduciary duty to clients.

Fiduciary Duties Then and Now, Fox. Martyn & Pollis, Eds., (ABA Litigation Section 2009)

“Fiduciary role is broader and more encompassing

• f the full range of an attorney’s professional and

ethical obligations, than ‘zealous advocate.’

Charity Scott, Doctors as Advocates, Lawyers as Healers

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v Lawyer owes client undivided loyalty v Lawyer must put client’s interests first v Lawyer must avoid conflicts of interest Comment 1 to ABA Model Rule 1.7, Fiduciary Duties Then and Now, Fox. Martyn & Pollis, Eds., (ABA Litigation Section 2009) vClient’s ability to function well in

mediation/litigation

vWhether anger/resentment is clouding

client’s judgment

vPotential benefit to client

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vWhat is at stake fo r this pe rso n, be yo nd the

imme diate le gal issue s?

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s a signific ant re latio nship at stake ?

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s the c o nflic t impairing the ir physic al he alth?

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s the c o nflic t impairing the ir e mo tio nal we ll- be ing?

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s this so me o ne who c an take matte rs in stride , o r is this pe rso n suffe ring ino rdinate ly? And if the latte r, the n fo r ho w lo ng have the y be e n suffe ring?

vCan this pe rso n partic ipate in me diatio n,

ne go tiatio n and/ o r litigatio n e ffe c tive ly? I s the ir ange r, re se ntme nt o r hurt ge tting in the way?

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vI

s this so me o ne who c an take matte rs in stride , o r is this pe rso n suffe ring ino rdinate ly? And if the latte r, the n fo r ho w lo ng have the y be e n suffe ring?

vCan this pe rso n partic ipate in me diatio n,

ne go tiatio n and/ o r litigatio n e ffe c tive ly? I s the ir ange r, re se ntme nt o r hurt ge tting in the way?

vHo w like ly is it that the me diatio n (o r litigatio n)

will me e t this pe rso n’ s ne e ds, no t just le gally and financ ially, but e mo tio nally as we ll?

vHo w like ly is it that the o utc o me o f the

me diatio n (o r litigatio n) will bring re so lutio n and c lo sure fo r this pe rso n?

vDo yo u be lie ve this pe rso n wo uld be ne fit fro m

fo rgive ne ss and making pe ac e with what has

• c c urre d?

vAfter working for this company for over 30

years, plaintiff was terminated. He believes he was the victim of age discrimination. He makes clear he wants the most aggressive attorney he can find.

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v Client, same as above, wants to find the

most aggressive litigator she can to bring suit against her siblings for mismanaging a family trust.

vClient was injured in an auto accident.

Preliminary discovery shows she has a very strong case of liability and damages, including substantial lost wages. The case has an early settlement value of at least $300,000, of which you would get a third. However, she indicates she wants to forgive the driver and settle for her medical bills only.

If clients forgive ...

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They might decide not to pursue a claim, and not need the services of the attorney/mediator.

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They might settle their cases more quickly, and not need as much of the attorney’s time.

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They might settle their case for less money, and lawyers working for a contingency fee will receive less.

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They might not need mediation, or as much mediation, thereby reducing the mediator’s fee.

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v Whe n a signific ant pe rso nal re latio nship is at

stake inc luding tho se invo lving spo use s, siblings, pare nts, c hildre n, ne ighbo rs, c o lle ague s, c o - wo rke rs, and busine ss partne rs

v Whe n the re is no future re latio nship but the

partie s want c lo sure

v Whe n inte nse e mo tio ns are ge tting in the way

• f e ffe c tive ne go tiatio n and de c isio n-making

vWhe n the de sire fo r re ve nge o r re taliatio n is

pre ve nting the c o nside ratio n o f re aso nable se ttle me nt o ffe rs

vWhe n the re is an ino rdinate amo unt o f

suffe ring o ve r so me thing that o c c urre d a we ll into the past

vE

mplo yme nt disc riminatio n

vPe rso nal injury vBre ac h o f c o ntrac t vPro bate and trust vSibling dispute s vDivo rc e

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Prio r to Me diatio n (U nilate ral)

vHe lps partie s re so lve ange r and blame vE

nable s the m to partic ipate e ffe c tive ly in me diatio n During Me diatio n I n Cauc us (Unilate ral)

vHe lps pe rso n manage ange r and func tio n

mo re e ffe c tive

vRe duc e s unre alistic de mands fue le d by the

de sire fo r re ve nge During Me diatio n (Bilate ral)

vI

f bo th partie s are o pe n to it, the e xc hange

• f apo lo gy and fo rgive ne ss c an be

suppo rte d

vE

nable s re pair o f re latio nship and/ o r c lo sure

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Po st-Me diatio n (Unilate ral)

vF

• rgive ne ss is always available

vE

nable s pe rso n to make pe ac e with whate ve r has o c c urre d

vFocuses solely on legal issues vViews emotional and relationship issues as

irrelevant

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vComprehensive view of legal problems vHumanistic vInterdisciplinary

“Legal practice is showing signs of the evolution of a new professional identity for lawyers which is responsive to new dispute resolution processes with an emphasis on just and strategic settlement. . . . Effective negotiation and settlement skills are becoming increasingly central to the practice of law.”

Professor Julie McFarlane, The New Lawyer vSeek legal solutions that include repair of

relationship and healing.

vWork with mediators who can guide this.

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v Learn about forgiveness v Practice forgiveness v Put forgiveness on the menu of options v Support clients who want to forgive

Ultimate Tool of Conflict Resolution

INTERVENTION GOAL LEVEL

• 1. Stop the Fighting

Cease Fire De-escalation

• 2. Settle the Issues

Settlement Ending

• 3. Address Underlying Issues and

Emotions Needs Addressed Forward Movement

• 4. Forgiveness of Others

and Self Closure Peace

Adapted from Kenneth Cloke, The Crossroads of Conflict, Janis Publications 2006

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Every conflict teaches us what we most need to learn.

} See conflict as an

• pportunity

} Use conflict as a

pathway for healing and growth

} Learn what it is

we most need to learn

v“They don’t deserve it.” v“If I forgive, they’ll do it again.” v“It’s too hard.” v“I don’t know how.” v“Why should I forgive when I’m right?” v“What happened is unforgivable.” v“If I forgive, it means what happened was ok.”

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v“By holding onto my anger, I can keep

punishing them.”

v“I’d rather have revenge.” v“Holding this over them give me power.” v“There are advantages to remaining a victim.” v“This way, I can keep blaming them.” v“If I stay angry, I don’t have to feel the pain

underneath.”

v“Forgiveness would make me look weak.”

v Have you considered forgiving the other person

for what occurred?

v Do you think it would benefit you to forgive? v What would you need in order to forgive? v Is there anything you want to ask forgiveness for? v Is there anything you need to forgive yourself

for?

v How has this situation affected you? v What has it cost you in terms of health, well-

being and happiness?

v What will it cost you if it continues? v Is it causing a strain in your life? v How much anger/resentment/hurt are you

feeling?

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vDo you think it benefit you to let go of some

• f this?

vWould you want to do so if you knew how? } Be unattached. No agenda. No judgment. } The goal is to help the person make an

informed CHOICE.

} Timing is everything. Pay attention to where

the person is relative to the stages of loss.

} When appropriate, present forgiveness as a

possible option.

} Speak from personal experience of when and

how forgiveness has been helpful (to you or

• ther clients) in similar situations.

} Develop mastery yourself: Learn about, and

practice forgiveness!

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} Learn about forgiveness } Practice forgiveness: Experience the benefits

first-hand

} Put forgiveness on the menu of options for

clients

} Discuss the benefits and risks } Support clients who want to forgive } Make a referral to a forgiveness coach who

can help