Can lawyers do their jobs and still show ‘kindnes’?

Remaining respectful and courteous no matter what is the courageous thing to do, argues John Sturrock

Recently, I had the privilege of facilitating a session at Scotland’s Citizens Assembly at which politicians from four political parties took the opportunity to discuss with the assembly members( more than 100 people randomly recruited from across Scotland) their vision for the future of the country.

At the outset, I framed it as a departure from the repetition of partisan political positions. I wanted to explore where parties could work together in the interests of the people of Scotland. It turned out to be an intriguing and encouraging session, with a lot of engagement by the speakers and questions from the members which sought to get under the surface.

As we started, I referred to the Assembly’s own “conversation guidelines” and particularly to the call to be kind and supportive to each other. Talking about kindness in a political discussion would normally be dismissed as touchy-feely. But of course, it’s not soft at all. It’s hard to be kind in the febrile world of debate and denunciation.

A similar thought occurred to me in conversation with a professional colleague just the other day. Suppose we decided that the benchmark for success, a key performance indicator, was how kind we are to others? Suppose the only criterion for an annual review was: “How kind have you been to your colleagues this year?”

Exploring our underlying motivators and drivers is interesting. If it’s not kindness, what is it? Is it a need to win? To be proved right? Not to be seen to lose face? To justify ourselves to others? To ourselves? In some recent mediations and facilitations, I have been fascinated to observe the interaction between erstwhile antagonists. It really is as simple, in many situations, as having a respectful conversation. To view the other not as an implacable adversary but as a partner with whom one needs to work in a joint problem-solving exercise. Someone with whom one can do business or restore a worthwhile working relationship. It’s how to achieve that which matters.

Which takes me back to kindness. One definition describes “the quality of being friendly, generous, and considerate”. It is said that “While kindness has a connotation of meaning someone is naive or weak, that is not the case. Being kind often requires courage and strength.” There’s the rub. We often fear being kind because we fear being perceived as weak. The opposite is probably true. to be kind in the true sense of the word is hard, as it requires unusual qualities in today’s world. Counter-intuitively, we need to quell the anger or frustration that we feel; to override the reptilian brain’s flight or fight response, and find it in our hearts and minds to behave with dignity and courtesy even if the words and actions of “the other side” have disappointed us – or worse.

“Why didn’t we have this conversation some time ago?” is a well-rehearsed phrase with which I start many a training day. This expression of regret which I hear regularly in my mediation work really does lie at the heart of things. What gets in the way? Here is where it can get difficult. On too many occasions, I hear it said that “when the lawyers got involved”, it all became more adversarial. That could be perception of course. The lawyers often get involved because it has become adversarial anyway and they are then identified with the distress that results. And many, many lawyers in my experience work hard to de-escalate the situation, often in the face of client resistance and demand for tough action. What to do?

I believe the answer lies in that underlying motivation or driver. Is it to act kindly? Or to win? To be proved right? Not to lose face? To justify ourselves to the firm? Can we do our jobs and still be “friendly, generous, and considerate”? To be rigorous about the issues and robust on the problem, while remaining respectful and courteous towards the individuals involved, whoever they may be and however they may act, is the courageous thing to do. If we can do it, we will see better relationships, better outcomes, higher quality solutions and more effective decisions. It’s a worthy aspiration.

John Sturrock is a Senior Mediator and Chief Executive, Core Solutions Group