CIVILITY IN MEDIATION AND ELSEWHERE

By: Guy O. Kornblum

San Francisco, California

Be nice to people on your way up because you might meet
’em on your way down. –Jimmy Durante, American singer, pianist, comedian and
actor

Civility costs nothing, and buys everything. –Mary
Wortley Montagu, English writer

Why am I hearing and reading so much about civility lately.
It has been around for years. Essentially it is defined as
"politeness." Ms. Manners would perhaps
expand on that to a level of cordiality and diplomacy that is appropriate for
the circumstances.

Recently I heard a sermon by the rector at our church on
this very topic. Why was he preaching on this? And what was his theme. He
essentially said that we have left our guard down and our manners at home. He
described various incidents of "bad manners" and urged us to
"watch our mouths". Simply lesson. Have we not learned such?

A local tv station has a segment from time to time on
"People Behaving Badly." And there are some dandies for sure.

Two recent pieces have caught my eye on this topic: "Be
Nice: More States are Treating Incivility as a Possible Ethics Violation,"
(ABAJ, April 2012, p. 26), and my colleague and local mediator, Michael Carbone
just sent out an email entitled, "Resolving It: Civility in
Mediation," Vol. 3, No. 9, in which he pointed out that recently courts
and bar associations have been addressing the issue of civility. As is stated
in the ABAJ article, this is not the first time our profession has been
concerned with civility in litigation. The ABA’s House of Delegates addressed
the topic in 1995 and again at the Annual Meeting in 2011.

So, let’s talk about what civility means in mediation. Mr.
Carbone speaks of avoiding "colorful language in briefs, raising voices,
pointing fingers, interrupting, making faces, being sarcastic, or threatening
to walk out." No doubt behavior of this type is just plain wrong. It
hampers negotiations and results in a wasteful effort. No settlement can be
reached if counsel or a client behaves this way because of a state of mind
clearly indicating, "No deal!"

With all due respect to these comments, it is my view that
civility in mediation means more. It means coming to a mediation in the right
frame of mind, with a view to listening, evaluating and re-evaluating your
client’s position, participating in the process in a positive manner, being
diplomatic and having a desire to compromise and resolve the case. Thus a
higher level of behavior is warranted to meet what I believe is the standard
for civility in mediation. It is not just avoiding "bad behavior"; it
is preparing yourself and your client to being active participants in the
negotiation process. I have stressed the "Four C’s" of mediation:
Candor, Credibility, Communication and Confidentiality, which to me fulfill the
goal of civility as a participant in the mediation process. Without this
approach, the parties will simply mark time and not achieve the desired goal of
resolution. Indeed, this approach would serve a client’s cause in all matters
relating to the dispute resolution – sometimes known as the litigation –
process.


Mr. Kornblum has been a specialist is
civil trials, arbitrations and appeals since graduating from Hastings College

of the Law, University of California in 1966. He is the
principal in his San Francisco based trial firm, Guy

Kornblum & Associates. He is certified in Civil Trial
Advocacy and Civil Pretrial Advocacy by the National Board of Trial Advocacy
and is a Charter Fellow of LCA. He is also a Life Member of the Multi-Million
Dollar and Million Dollar Advocates Forum, a Platinum Member of The Verdict
Club, a Silver Member of the Elite Lawyers of America, and a Legends Society
Top Lawyer (Personal Injury). He has been a Super Lawyer each year since 2006.
He is co-author of "Negotiating and Settling Tort Cases," published
by Thomson West and the American Association for Justice (formerly Association
of Trial Lawyers of America). His firm’s website is www.kornblumlaw.com. Mr. Kornblum is a
strong advocate for mediating his client’s cases before going to trial or
arbitration.

civility

1. politeness or courtesy, esp when formal

2. (often plural) an act of
politeness

Collins
English Dictionary – Complete and Unabridged
 © HarperCollins
Publishers 1991, 1994, 1998, 2000, 2003

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