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Litigation: The Outmoded Premise

In the context of civil dispute resolution, statutes, common law, and procedural rules are predicated on a dualistic notion of “justice.”  By this is meant that the entire system is built largely on the premise that one party is “right” and the other is “wrong.” It assumes that through vigorous advancements of divergent positions, “truth” will ultimately emerge enabling the trier of fact to fit this version of past events within laws and rules that legislators and courts have deemed minimally necessary for the successful functioning of society.

In recent decades, however, a far more expansive notion of “truth” has begun to permeate American culture.  This notion is largely based on a felt appreciation that we are not islands unto ourselves; that everything we do has impact on others in our lives, social institutions, the physical environment, etc.

When “truth” is considered in this more expansive fashion, one begins to appreciate how limiting the truth within our current adversarial model clearly misses the mark.  Disputes “resolved” based upon this fallacious premise and narrow concepts of “right” and “wrong” may provide some fleeting sense of victory to one or more litigants, but most often does little to successfully address the multitude of competing interests that usually come to bear on any civil dispute.

The new holistic mediation model springs from a premise that individual parties, largely as the result of past conditioning, most often approach disputes with quite myopic ideas about an optimal solution to the conflict before them. While one party may have acted outside the bounds of propriety, or failed to conform his or her behavior to a requisite baseline of due care, thus causing another party to be “wronged,” the expansive view of truth recognizes that, in most cases, hurtful behavior springs from internal suffering in the life of the actor.  Being branded as “wrong” at the conclusion of a litigation proceeding is only likely to exacerbate the suffering of the actor or actors, thus leading to further undesirable behavior in the future.  In this way, the traditional adversarial model largely fails to address the underlying issues with compassion, and in ways instilling the true, felt sense that “we are all in this together.”

When this notion of interconnectedness becomes the foundational premise of our dispute resolution model, we will have moved beyond our current adversarial system and toward the resolution of disputes in a way offering far more optimal and sustainable solutions.

To learn more about holistic mediation, contact Holistic Lawyer and Mediator Michael Lubofsky at (415) 508-6263, or visit http://www.holistic-lawyer.com.