Surprises in the forest


Over the last few years I have developed a small niche in the service-provider world.  It’s odd.  I am like a quasi-legal consultant.  And I like it.

Don’t get me wrong; I am not a lawyer (way too healthy and moral for that!) but I was a mediator and arbitrator for over fifteen years.  That kinda helps.

You see, lawyers (presumably) know the law.  Mostly they know the law in the area in which they practise.  So, they are specialists.  They may not KNOW the law so much as they know SOME laws.  Even more to the point is that the law is a dynamic discipline.  It changes.  The original law is written and then the judges and the cases presented practically rewrite the original law with precedents or ‘acceptable’ interpretations of the basic law.  A lawyer has to know the actual law as well as keep up with the latest variants and interpretations the court hands down.  In effect, good lawyers are like ‘trendwatchers’ as much as anything.

But that is not my point.  Not really.  The point is: somehow the profession has managed to claim all sorts of other skills that are not necessarily part of their originally-trained-for skill set and, to be frank, many critical ones are clearly not compatible or even present in the lawyer claiming to have them.  Negotiation is, perhaps, the major one.

Again, don’t get me wrong;  some lawyers may be great negotiators but there is nothing in the practice of law that necessarily equates to skill in negotiation save for one thing – brandishing the threat of litigation.  Lawyers tend (generally) to see things in terms of ‘right or wrong’, black and white.  “What does the law say?”  Cross ’em (or just disagree) and they threaten to sue you.  They will argue ‘points’ of fact and law at the very least.  Argue, not negotiate.  In effect it is like a boxer inviting a non-boxer into the ring.  Very little in the way of real negotiation will ever take place.

Mediators, on the other hand, tend to see things in shades of grey.  And, when you see shades of grey, you tend to see more solutions.  And different ways of getting to resolution.  Mediators have to be creative and flexible.  Even arbitrators (those who ‘judge’ who is right and who is wrong) have been trained to find evidence rather than legal precedent.  In fact, in arbitration, precedent does not apply.  Law does.  But not precedent.  So we have to know the basic law but not the history of it as it has played out.  That, too, allows for more flexibility in the work.

However, there is very little work out here.  There are very few people and they tend, as a rule, NOT to sue or get sued.  Go figure?  But every once in awhile, there is a quasi-legal issue shared that needs some input.  A couple of years back it was a refused insurance claim that needed to be re-presented to the insurer.  The original lawyer had argued and threatened and gotten nowhere.  In that particular case, a different approach worked much better.  Basically it was a matter of style.  And it worked.

Another was just knowing enough to get past the initial ‘low-ball’ of an ICBC claim.

And so it goes……..some weird kind of dispute that requires something ‘other’ than a confrontational legal posture.  There is no professional name for it……not really……….call it negotiated settlement consultancy and you might be close.  I have occasionally referred to it as negotiation-for-hire.   But each case is so much different than the last that I can’t honestly describe the function in a couple of words except to say that is definitely not lawyer-like.

Weird, eh?  Go to the forest and find a new profession……………


1 thought on “Surprises in the forest

  1. Dave the only books I usually read are about real things in life. I love your blog because its real every day life. I can really feel what you go through day by day.
    Keep it up.
    By the way, I just sent Sally some pictures of the whales that went through Nanaimo.
    The terror in the eyes of that poor seal were haunting, but that’s life.


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