There can be no empathy where there is no civility.

I was at a conference  recently during which one the presenters made this statement. It struck me as I had never thought about these concepts as being connected. But, indeed, they are.

“Civility” is defined as “…the act of showing regard for others by being polite….”It “…is being friendly and nice to everyone….You are respectful, even if you do not like that person very much.” ( You are courteous and polite. ( )

“Empathy” is defined as “…the ability to understand and share the feelings of another.” ( ) It is “…is the capacity to understand or feel what another person is experiencing from within their frame of reference, that is, the capacity to place oneself in another’s position.” ( )

So—if there are two adverse parties who are not being polite, friendly, or nice to each other but rather quite the opposite, does one really expect that either party will take the time to look at the matter in dispute from the other party’s viewpoint?  They do not respect each other and so certainly will not listen to what the other is saying.  The other party is the “enemy” and so using the cognitive bias of reactive devaluation, each will discount immediately and wholeheartedly what the other is saying. Simply because the other is saying it, it cannot be so!

Now… suppose there are two adverse parties who are being polite, friendly, respectful and nice to each other. While they may disagree with what the other is saying, out of respect for the other, they will listen and at least acknowledge what has been said.  And out of respect, each may even attempt to understand the framework in which the other is operating, or to empathize with the other.  Each person’s regard and respect for the other will allow them to look at the situation from the other’s viewpoint, or with empathy.

One of the major reasons why I ceased being a litigation attorney and became a full-time mediator was the lack of civility in civil litigation. “Civil litigation” became an oxymoron. And as noted in a recent California state appellate court decision, LaSalle v Vogel, Fourth Appellate District, Division Three, Case no. G055381 (June 11, 2019), it has not gotten any better;  Justice Bedworth, the author of the opinion, wrote three pages lamenting the lack of civility, courtesy, dignity and integrity among litigating counsel (Id. at Slip Opinion at 4-7),  pointing out that this lack has gotten so bad that in 2014 the State Bar of California amended the oath given to new attorneys to add a civility requirement; to “…vow to treat opposing counsel with “dignity, courtesy and integrity.” ( Italics in original, Id. at 6)

As I studied to become a mediator, I realized that my ability to empathize was quite low. As a litigator, I had been taught reactive devaluation: to discount what the other party was stating simply because of its source. I  kept bumping into litigators with a “scorched earth” or “take no prisoners” mentality. No civility, and thus no empathy.

Only after becoming a mediator, did my empathy quotient increase dramatically.  I could be nice, friendly, kind without it damaging” my reputation as a “tough” litigator.  I simply wasn’t one of those anymore.

Based on my own experience, the words of the presenter struck a chord and quite a bit of truth: Civility precedes Empathy.

… Just something to think about.

Update: In my May 3, 2019 blog, I discussed California Senate Bill 188 (SB 188) which defines discrimination based on race as “…including, but not limited to hair texture and protective hairstyles….” (SB 188).  On July 3, 2019, it was signed into law by the Governor and chaptered by the secretary of State as one of the laws in California!


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