Senator John McCain died last Saturday- August 25, 2018. And since then, tributes and remembrances have been pouring in from all over the world. Except for one person: The President of the United States. On Saturday, in a very terse tweet, he sent his condolences and sympathies to Senator McCain’s family, not focusing on the Senator himself at all. Initially, while his staff did draft a full statement for him to give to the public, the president refused to do so. And, unlike the rest of Washington, D. C. and the nation, the flag atop the White House flew at full mast. Only after a scolding by the American Legion, did the president issue a terse statement about Mr. McCain and order the flag to be flown at half-mast.

The actions of our president remind me of why I left litigation to become a mediator. Opposing lawyers took everything personally. They took on the mantle of their client. If the other party was a “bad guy”, then so was the lawyer. The lawyer was seemingly incapable of recognizing that the other party’s lawyer was simply doing her job; representing her client zealously and diligently.  It really bothered me as a litigator that most of the lawyers I met had a “scotched earth”, “take no prisoners” philosophy that made it impossible for them to ardently argue a motion for summary judgment against an opponent in the morning yet have lunch with their opponent immediately afterwards.  They could not be friends yet disagree vehemently on issues. In the lingo of mediation, these lawyers could not separate the people from the problem by being hard on the problem but soft on the people.

The past few days of tributes and interviews with Mr. McCain’s colleagues have brought all this home, again. Some of his closest colleagues are Democrats; some disagreed with him strongly on the pressing national issues of the day, be it immigration, health care, gay rights or the military. Yet, unlike many others, Mr. McCain separated the person from the problem, and rose above the pettiness. He remained focused on the important stuff, the long-range goals.  While he may have been a “very partisan politician,” he, “…nonetheless worked with, respected and occasionally sided with people from the other party.” (Bloomberg). Or, as Chuck Todd and Carrie Dan of NBC News phrased it:

…countless admirers of the late Arizona senator noted his ability to build bridges, to see past differences and find common ground. His defiance of party labels — while maddening to those opposing him on whichever issue he happened to be working on — earned the trust and respect of colleagues both sides of the aisle.

I hope that in my future mediations, the lawyers and parties will take a moment to reflect on the values and legacy of Senator McCain. To see past their differences and try to find common ground upon which to settle a lawsuit rather than try it.   To remember, that no matter how strongly they oppose someone on a case, they should seek to separate the case from the person and find that which they can agreed upon. The other lawyer is just doing her job like they are. Go have lunch together. The communication with your “enemy” will do wonders! As evidenced by the outpouring to the memory of Senator McCain.

…Just something to think about.


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