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The Closer
A Mediation Newsletter 
July 2012
Empathy and Apathy
by James Rainwater
As a mediator, seeing the perspective from both sides is an inevitable occurrence. Our training prepares us to ask questions of each party that elicit clarification and potential paths to an ultimate resolution and settlement. To be able to appreciate someone else’s viewpoint is the cornerstone of human empathy. To understand and identify with another’s beliefs is the foundation. On the other hand, apathy is the complete lack of interest, compassion, or understanding of the other party.
Obviously, the quality of empathy is far more beneficial to the mediation process than the obstructive traits of apathy and indifference. While law school taught us to be logical, fact-obsessed, and perpetually correct, that education rarely touched upon the human element and the roles of emotion and perspective. Mediation can offer the participating attorneys the chance to gain a better understanding of people, conflict, and the factors that influence positions.
Bluntly stated, something went horribly wrong between the parties, or they would not be seated in the middle of a settlement conference. There is a reason why the parties have continued their dispute into the legal system, and it is well-worth the time to grasp an understanding as to the motivating forces of the opposing side. If opposing counsel can acknowledge each other’s perspective, perhaps, they can better facilitate their clients into a possible agreement.
Of course, all of these ideas should be moderated and modified to each individual matter. In a heated and contentious divorce case, exhibiting an over-abundance of empathy may not do either side much good. Although I am advocating for more engagement, rather than disinterest, I do not expect the attorneys to drop their positions or passions for representing their clients. There should be a workable middle ground between complete empathy and cold-hearted indifference.
For your next mediation, I suggest that you consider keeping an open mind to the overall settlement process and focus less on the minutia of your client’s third and fourth level concerns and demands. By showing an understanding of the other party’s position, you may be able to impart a more conciliatory tone with your client. A cross-sharing of mutual understanding can only increase the odds of a successful mediated resolution.
