I was waiting in line to have my credentials examined when I heard the bombastic voice of a man too old to understand that he need not scream into his phone. Unconcerned for his privacy, he made me, and perhaps DIA’s entire security line, privy to the details of the lawsuit that he apparently just won. A grimace-inducing circumstance, it was exacerbated by a fellow line-goer, who chimed in about the litigation in which he had recently emerged victorious. The general mien of these two men was off-putting: bad fashion choices, haughty wives, boasts about lessons taught and opponents humbled. My mind, already on vacation at that point, would normally have been filled with unsaid retorts and admonitions. But, freed from the normal perspective of my vocation, I was able to sift through the situational detritus and unearth a sparkling revelation. Perhaps litigation is not entirely useless. It exists to give certainty in a world without many clear answers.
It is a manufactured certainty, illusive in the awarding of right and wrong. Litigated outcomes pretend that one person is to blame and the other a saint. For those with faith in the system, this allows for a tidy resolution. But anyone with sense, especially the victor, should realize that the triumph is Pyrrhic or, at least, hollow. In practical terms, he may be awarded money or custody or control. He may be able to capitalize on these spoils in the physical plane. But a judge’s decision carries no spiritual currency.
Believers in litigation are akin to adherents of any other sociopolitical system. They want a particular order imposed on a life that is inherently unpredictable, fractious, joyous, and cruel. To implement this regime, it must be to the exclusion of all other ways of viewing the world. There is a reason why the various Communist apparatus subvert the practice of religion: the systems are in conflict with each other. Consolidation of power requires the ascension of one ideology and an intolerance of any dissent. Religions themselves are equally guilty: legion are the examples of one set of spiritual beliefs refusing to acknowledge the legitimacy of any other set. When these sects reside within the same geography, wars result. There is such a thing as too much certainty.
I prefer surprise. Not so much as to the details of daily life. When I order a steak, I don’t want to receive a bowl of ramen. I value punctuality; I do not like to wonder when my appointments will arrive. But in the larger scheme of existence, knowing the outcome before it comes takes all of the excitement out of the process. This is especially true if the result is foisted upon me. If I am going to be subject to a hard and fast consequence, I want to have a hand in its creation.
A cooperative dispute resolution method must have an endpoint that is easily digested, in written form, by its participants. In this way, it strives for a type of certainty. But, the magic of mediation is that the disputing parties come into the room with a very certain viewpoint and often leave with an end that they could not have predicted. To effectively engage in mediation, one must embrace mystery and fluidity. An inflexible mediation participant might as well not be there in the first place. One who is open to an array of outcomes, who listens when their opponent speaks, who is able to recognize his own culpability, that is the ideal person I want sitting in my mediation room. Not coincidentally, these are the types of people who make more friends than enemies, whose spouses love them, whose children respect but do not fear them.
Litigation is an artificial construct, borne of the same impulse that lead our forebears to destroy wide swaths of native vegetation and population. They wanted to subjugate the land and its people because they feared the awesome power of nature. Mediation more accurately tracks the contours of the world into which humanity was born. In any dispute, there are hillocks and ravines and raging creeks and bucolic meadows. Smoothing them out to forget that they ever existed is not reality. To truly solve a conflict, the parties must navigate all that comes into their path and must be prepared to backtrack when that bear comes around the corner. There is no map, no trodden path. It is in the trailblazing that the disputants come together.
From their perceived perch, my two fellow travelers were certain they were winners. They sure looked like losers to me.