Empathizing with the Enemy

Reciprocal empathy helps us gain mutual understanding.

I was recently reminded of a case I mediated last year, one of the most formidable I’ve ever faced. The mediation was difficult for various reasons, as the plaintiff had suffered a devastating work injury that led to high medical bills, an uncertain future, and a case implicating complex legal issues.

Perhaps the most challenging aspect of the case, though, was the defense attorney. He was tough, hard-nosed, and unwavering in his view of the case and his client’s negotiating position. The plaintiff’s attorney was unable to make any headway in breaking down the defense, and I, too, felt like I was talking to a brick wall when attempting to help defense counsel see the weaknesses in his case.

As the day wore on, I entered defense counsel’s caucus room and caught him on the phone. I started to leave the room, so as not to disturb what I assumed to be a private conversation with the attorney’s client, but he gestured me to stay. As I sat down silently, unable to help but note the audible s…