Silent Resistance to Mediation Srđan Šimac, LL.M. Judge of the High Commercial Court and President of Croatian Mediation Association Sofia, November

Resistance to mediation

Mediator

Paradox  Most of the disputants are not satisfy with the courts and in spite of that fact, they still use courts mostly as the first option!?

Leading the change  Why they not want to change when the need for change is so clear for us?  It is because the need of change is not clear to them.  People don’t resist change so much as they resist being changed.  We have to explain why the affected people should want to change.  We have to cultivate readiness, not resistance.

Power of status quo  How to overcome the inertia of status quo?  Any change makes people move out from their comfort zone, and most people will resist this.  There must be clear rationale to why change is necessary and why the status quo is not an option.  Status quo sometimes needs wake-up call.  You can’t wait change to happen; you have to start it.

New things and experience  „There are always two parties – the party of the past and the party of the future, the establishment and the movement. Which side are you on? Ralph Valdo Emerson  „People never really trust to new things unless they have tested them by experience. The key word is experience. Machiavelli

Habits dies hard  When we lead people through change, we challenge what they hold dear – habits, tools, loyalties, and ways of thinking  People push back when we disturb personal and institutional equilibrium they know.  Leading a change is risky business!

Change and feeling of loss  People do not resist change per se. People resist loss.  You appear dangerous to people when you question their values, beliefs, or habits of a lifetime  Although you may see with clarity and passion a promising future of progress and gain, people will see with equal passion the losses you are asking them to sustain.  The hope lies in capacity to deliver disturbing news and raise difficult questions in a way that people can absorb.

Adaptation to change  Adaptation to changes requires giving up an important value or a current way of life.  At the beginning, people can not see that the new situation will be any better than the current one.  What do they see clearly is the potential of loss.  People frequently avoid painful adjustments in their lives and try to postpone them.

Every change is painful  The deeper the change and the greater the amount of new learning required, the more resistance there will be and thus, the greater the danger to those who lead the change.  Why should people oppose you when you are helping them to change habits, attitudes and values – when you are doing something good for them?  Habits, values and attitudes, even dysfunctional ones, are part of the one’s identity. The change is to challenge how people define themselves.  Habits are hard to give up because they give stability. They are predictable.  In going through the pains of adaptive change, there is no guarantee that the result will be an improvement.

People play safe  Intivituely people rather play safe than put at risk.  To abandon of the habits, beliefs, values and attitudes mean to be disloyal to our identity.  Any change stimulates resistance.  Change asks people to take a loss, experience of uncertainty, and even express disloyalty to people and cultures.  Change forces people to redefine their identity and it also challenges their sense of competence.  Loss, disloyalty, and feeling incompetent. No wonder people resist.

Understanding the cause of resistance  Much of the resistance is unspoken and therefore difficult to indentify.  Proponents of alternatives make mistake trying to substitute or replace traditional dispute resolution system.

Causes of lawyers’ resistance  Lack of information  Attorneys would not discuss about use of mediation  Lawyers generally are resistant to the spread of mediation within community – gatekeepers – they try to keep monopoly on law and dispute resolution  Attorneys’ lack of knowledge of mediation (unfamiliarity)  Fear of feel incompetent  Sign of weakness  Doubts about real possibility of solving disputes in mediation  Fear of free discovery to other parties  Fear of inclusion clients in mediation  Lose of control  Lose of income  The trial lawyer is trained as a warrior, not as a peacemaker.

Causes of clients’ resistance  Far to many people know far too little about mediation.  Conflict means the beginning of distrust among disputants  Negative emotions  Culture of blame  Nobody could not do better than me  Avoidance of responsibility  Fear of novelty  Fear of something what is not institutionalized yet  Term „alternative”

Warning books’ topics!?  The Death of Law (Fiss)  Law v/s Life (Buchman)  A Game Call Justice (Glascoe)  Justice Without Law (Lawyers) (Auerbach)  The Lost Lawyer (Kronman)  Running from the Law: Why Good Lawyers Are Getting Out of the Legal Profession (Arron)  The End of Lawyers (Susskind)  New Lawyer (Macfarline)  Happy Lawyer (Nancy Levit and Douglas Linder)

„ The best way to predict the future is to invent it.” Dr. Alan Kay

Mediation is here to stay!