Closure represents the triumph of reality over illusion, recognition that things are the way they are, not the way we wish them to be.
“A man has got to know his limitations.” Clint Eastwood, Magnum Force
Settlement is a peace treaty declared on agreed terms. It represents the triumph of reality over illusion, rationality over expectation, calculation over emotion, and the cessation of conflict between parties who, in many cases, will go their separate ways.
Reconciliation is different from a peace treaty, and harder to achieve. It represents a collaborative harmonization of emotional needs and perceived realities, where the parties want or need to continue living in relationship with one another.
After the defeat of Hitler in 1945, Europe, for a thousand years the cockpit of war was utterly devastated. Yet today, twenty-five European nations with different languages, histories, and economies have achieved gradual reconciliation so thorough that today a general European war is not conceivable. Neither today can we conceive of California attacking Idaho, or Alabama marching on Ohio. Reconciliation is possible.
Some litigators are quite withering about mediation: “I try my cases,” they boast, a variation on the theme “real men don’t eat quiche.” The reality is that these “real men” do settle their cases 96% of the time.
Without war we would have no word for peace, without peace no word for war; they are a dichotomy. The classical Greek word for “the natural state of things” was stasis, from which we derive the word static, but which to them meant perpetual conflict. The task of the mediator is a little more complicated than simply asking: “Can’t we all just get along?”
The mediator has the task of maintaining the process between the parties, whether the goal is settlement or reconciliation, through convening, opening, communicating, negotiating, until the final step, which is closure.
It will be found that parties often negotiate to a short distance from each other, but the final step that each side has to make proves elusive. They are like a horses that gallop right up to a jump, but then screech to a halt, sometimes throwing the rider - and as far as mediation is concerned, this is a moment when the whole process may blow up.
At this final stage, suddenly emotion may again take over, and the impulses of the ego thrust themselves forward. With only a small concession needed to achieve resolution, the desire to win, to score a victory over the opponent, to stick it to the other side, to achieve a tiny measure of revenge, reasserts itself.
How is a mediator to proceed? Some mediators talk about the dignity of being able to say “No” and walk away. Others take the view that the dignity of saying “No” is an insufficient reward to exchange for the benefits of achieving resolution. Such mediators see, in their mind’s eye, the parties as having entered the room with a great burden upon their backs, or a ball and chain around their ankle that with just a little more effort can be removed. Even if the parties, having settled, walk out of the room with some reluctance, which is called buyer’s remorse or seller’s remorse, the buyer wondering if he took too little, the seller wondering if he paid too much, the match is over. The reason the parties chose mediation in the first place was to achieve that cessation. It is not just a matter of money, and certainly not a matter of ego. There is a great deal of time and stress, and waste of energy and resources, involved in disputes, so that the benefit the parties receive in the form of “getting their lives back” is a very important consideration.
“You’ve got to know when to hold ‘em, know when to fold ‘em.” Kenny Rogers
Charles B. Parselle is a mediator, arbitrator and attorney. He graduated from Oxford University’s Honor School of Jurisprudence and is a member of the English bar, then was admitted to the California Bar in 1983. A practicing attorney, he is a prolific author and sought-after mediator. To consult him, please contact him through his website: http://www.parsellemediation.com
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