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Story Telling is Everything

Story telling is everything.  Those of us of a certain age remember Paul Harvey’s radio spot called “The Rest of the Story” where he would introduce a set of facts, leave the audience hanging during a commercial break, and then come back and tell the audience “the rest of the story.”  There was often an unexpected and interesting twist to the rest of the story.   In the mediation setting the driving force is not necessarily the factual and legal presentations of the attorneys.  Rather the driver is the emotional, interpersonal and often subconscious backdrop of the dispute. 

 While most of us are not trained psychologists or experts in the biochemistry of the brain, it is important for the mediator to ascertain as soon as possible what is truly happening under the surface. Admittedly this insight is sometimes hard to find.  It may be best obtained in the private caucus meeting—once the parties have become comfortable with the mediation process and an atmosphere of trust is developed.  My first question in caucus with each side is often “so what is the rest of the story?”

                For the litigator representing a party in mediation the same emphasis on story telling holds true. An effective strategy for the opening comments in the group session is for the attorney to explain extemporaneously and succinctly what story lies at the heart of the case.  How did the parties get where they are?  Personal grievances and raw emotion needs to be culled and curated, yet not sacrificed entirely because “the rest of the story” is the proverbial elephant in the room and may be quite disconnected from legal theory or even the basic facts.  Handle these feelings with care because the goal is to reach a mutually acceptable settlement not to drive a further wedge between the parties.

                Before moving to possible settlement options and solutions, the mediator and attorneys need to let the “rest of the story” come out.   Attentive listening over extended periods of time can be exhausting – but it is vital to sit back and absorb.   The parties need their “day in court” before they can be expected to focus on the “what’s next” part of the mediation.   Mediators make the mistake of offering their opinion of the case too soon and pivoting hastily to solutions before the venting concludes.

                Besides serving as the foundation of a successful mediation, the story telling itself can be very moving and, in some cases, the most gratifying part of the process.   In this vein, there is an inspiring book called “Stories Mediators Tell” edited by Lela P. Love and Glen Parker published by ABA Book Publishing.  In its second edition, it is a compilation of stories by 24 prominent mediators from around the world—running the gamut of emotions—happy, sad, funny and everything in between.   We all have our special stories and it is a wonderful thing to share them if possible—respecting of course our confidentiality obligations!

                I heard a moving story at recent ABA mediation conference session in San Francisco based upon the “Stories Mediators Tell” book.  It was told by a trial judge from Croatia who was asked to conduct a mediation in a high conflict family matter a few days before Christmas.   The case was settled and the parties wished to honor the judge by sending him a basket of delicious local bread and pastries.   The judge was appreciative but could not accept any gifts for ethical reasons.  He arranged for the basket to be sent to a nearby orphanage—and soon afterwards received a letter back from the orphanage about how appreciative the children were for the gift.  After word got back about this, the judge observed one of the highly respected local attorneys involved in the case openly weeping in the courtroom.   The judge asked him what was wrong and the attorney confided that he himself spend four years in the same orphanage during World War II—and how the gift basked triggered a cascade of emotions for him.  It was a heartwarming Christmas story – told much better of course by the judge in person.   But it resonated with me.  The story does not have to be complicated to touch our emotions.

 Our profession is always challenging and yet we have the opportunity each day to make a difference in large and small ways, often leaving a positive impact on others.  As we witness our client’s stories-- and tell our own stories as mediator and attorney—we find something real and reassuring.  

                In closing, one of the keynote speakers at the ABA Conference, Dachin Keltner, author of the book “Born to be Good” said that our goal as practitioners is to “change the ratio of suffering to compassion one mediation at a time.”  At our best that is what mediators and attorneys do every day.  Our stories are rarely reported yet provide us sustenance we need to keep going.   They are what we lean into. 

Kennebunk Office

Bergen & Parkinson, LLC

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Phone: (207) 985-7000

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