The Importance of Pragmatism

This being an election cycle, there is an endless source of political commentary, fervent opinion, and endless speculation. Yet, I just watched an interview conducted by Ian Bremmer of presidential candidate Steve Bullock who revealed a refreshingly pragmatic view of the way to govern effectively. Governor Bullock spoke with honest recognition of the dangers of polarization.  I was left with the realization of just how similar litigation is to the polarization seen in modern day politics.  This is particularly evident in the employment cases that we mediate.

By the time the parties have conducted discovery, chosen a mediator, written their mediation briefs, and prepared their clients for mediation, they have firmly aligned themselves to one side of the equation: plaintiff or defendant; employer or employee; right or wrong.   Wait, what?  You heard it correctly.  It is astounding how many times we hear one party to a dispute proclaim with great gravitas (and often raised voice) that they are RIGHT and the other side is flat out WRONG.  Some parties will go further and proclaim that unless we the mediators are able to convince their opposing counsel to see the light, there is no chance the case will settle.

While we appreciate strength in presentation, the obvious truth is that if one side of a dispute is absolutely right and the other absolutely wrong, there is no need for mediation.  A motion to dismiss, motion for summary judgment or some other dispositive motion will properly resolve the case.  This is where pragmatism comes in.  We have yet to bear witness to a mediated case where there are no weaknesses to one of the parties’ positions.  The best practitioners recognize this and weave it into the dialogue.  It is not a weakness in negotiation to acknowledge the likelihood that opposing counsel is going to focus on the soft spots on your case.  To the contrary, such pragmatism demonstrates a more powerful understanding of the facts and law and becomes a tool for you to guide the discussion.

Similarly, as we move through the next 14 months of political discourse and prepare to cast our vote for the presidency, remember that it is often better to recognize and weigh the multitude of strengths and weaknesses of each candidate rather than take the lazy way out and proclaim one party as RIGHT and the other as WRONG.  For only when we recognize weaknesses and work together can we truly achieve the best results.  Thank you Governor Bullock for restating that truism.