Wednesday, March 4, 2015

Bad deals

Israeli Prime Minister Benjamin Netanyahu's speech to Congress yesterday about the conflict with Iran (transcript here) illustrates an attitude many parties in conflict take toward settlement negotiations. As the possibility of a negotiated resolution of a conflict begins to emerge, elements on one side or the other often find themselves resisting the deal. In this case, Netanyahu refuses to accept the idea that we have to choose between what he called a "bad deal" and no deal at all. The deal on the table would allow Iran to maintain some nuclear capacity, but would not allow them to build nuclear weapons. It's a bad deal, according to Netanyahu, because it would allow Iran to build many thousands of centrifuges, and shorten what is called the "break out time" that it would take for the country to build actual weapons. On the other hand, no deal at all would perpetuate the current state of hostilities, and would not restrict Iran's ability to build a bomb at all, if they were so inclined. "No deal" would therefore increase the chances of military action, if economic sanctions are not sufficient to prevent Iran from building a bomb.

The Prime Minister suggested that we are not limited to these two unpalatable choices, and that instead we can insist on a better deal in which Iran's nuclear capacity is much more restricted. One might question whether he really believes in this promise of a better deal, considering his view that the Iranian government is such a dangerous, untrustworthy regime that it wants to "impose a militant Islamic empire . . . on the entire world," and "will always be an enemy of America," If that is indeed the nature of the people we are dealing with, what would be the point of making any sort of deal with them? My guess is that Netanyahu would be a critic of any potentially achievable agreement.

In his speech, Netanyahu even acknowledged that he thinks we would still be better off with "no deal" than the "bad deal."  It's a legitimate point of view. Some wars do need to be fought, and sometimes you can obtain a better result by getting tough with an adversary rather than making an agreement. But there is usually a high price to be paid by taking that road, and Netanyahu knows he cannot sell that position in the United States. Most Americans do not want war with Iran. Netanyahu is also smart enough to understand that there probably is no third way. We have heard no indication from the parties at the negotiating table, who have been at this for a long time, that Iran would consider agreeing to the terms that Netanyahu argues we should insist on. Still he is encouraging Congress to think that a third way can be found, as a means of trying to build opposition to the potential agreement.

I have frequently seen parties in settlement negotiations refuse to accept the reality of the two choices in front of them. Part of the challenge for a mediator or diplomat is to get participants to recognize that the only two choices they have are either to accept the "bad deal" or to continue the conflict. At some point in the negotiations, all other alternatives have been exhausted. Still parties in conflict often cling to the belief that they are entitled to agreement on their terms, and they cannot understand why the other side will not simply surrender to their position. Moreover, the fact that the other side won't bend is often seen only as more evidence that they are the sort of bad people with whom one should be reluctant to get into bed anyway. Settlement negotiations represent a process of helping parties understand the other side's view of the world, or at least disabusing parties of the illusion that the other side will suddenly see everything their way. With Congress, that is going to be a challenge, as their political incentives often align with maintaining the fixed beliefs of constituents who never get an insider's view of negotiation realities.

Monday, February 23, 2015

Mediation confidentiality in California

I will be speaking as part of a panel, along with Mary Culbert and Phyllis Pollack, on Saturday, February 28, 2015, at 10:00 a.m., at Loyola Law School. The topic is mediation confidentiality. It's a timely subject, because recent cases have raised questions about whether the broad protections for mediation confidentiality in California, can still be relied upon. In particular, many mediators are troubled by the Milhouse case currently pending in the Ninth Circuit, which recognized a vaguely-defined "due process" exception to mediation confidentiality to allow evidence of offers and demands exchanged in an unsuccessful mediation to be introduced in an insurance bad faith case. In addition, the California Law Revision Commission is currently considering whether to allow an exception to mediation confidentiality in attorney malpractice cases.

We will be reviewing the history of mediation confidentiality in California, including discussing the leading cases, statutes and rules on the subject. We will also be discussing the dilemmas involved in maintaining the secrecy of communications among parties in caucus-style mediation. We will review survey information showing how often the courts have had to deal with problems claimed to have arisen in mediation. We will also discuss the possible scope of the "due process" exception, as well as whether an exception should be granted for attorney malpractice. That may lead to discussion of the broader problem of how to handle party dissatisfaction with the results of mediation while maintaining the confidentiality and integrity of the process.

All that, and lunch too. Further information, and registration for the program, sponsored by SCMA and Loyola Law School, can be found here.

Thursday, February 19, 2015

Learning from mediation

Someone posted a question on an online forum about a divorce agreement reached after two days of mediation. The questioner's ex-wife wanted to set the agreement aside because some stock options assigned to the husband in the settlement agreement had subsequently skyrocketed in value. The husband was looking for some ammunition that would allow him to retain the full value of these assets. (Almost the exact same situation can be found in the recent California Court of Appeal case of Lappe v. Lappe, No. B255704 (2d Dist. Dec. 19, 2014). In that case, the wife was seeking discovery of financial statements provided by the husband during the mediation, for the purpose of attempting to set aside the mediated property settlement on the grounds of fraud and duress.)

MyDivorcePapers blog
Faced with such a crisis, it seems the natural tendency of parties and their attorneys is to analyze the issue in legal terms and threaten to go back to court for resolution. The wife's first response was to accuse the husband of fraud, and look for other possible grounds to set the agreement aside. As for the husband, instead of expressing joy at receiving a financial windfall, or any desire to share it, he instead seemed very anxious to prove that he had no inside knowledge of the increase in value, and therefore was entitled to retain it for himself.

I responded to the question by saying that I thought it was a shame after two days of mediation that the parties had not learned a better way to resolve conflicts. Presumably the parties came to mediation the first time because they thought it would enable them to achieve a cheaper or faster or in some other way superior means of resolving the dispute over the allocation of their marital property. Why wasn't their first thought to go back to mediation a second time to resolve this new dispute? Presumably the parties should have gained some experience in two days of mediation that would encourage them to seek a mutually agreeable resolution, instead of each seeking to win at the expense of the other. Why did they revert to a "fight or flight" response as soon as they were presented with a new challenge?

We are seeing an increasing number of cases seeking to set aside agreements reached in mediation. To me, that indicates that mediation is not always succeeding in instilling in parties the values that mediation is supposed to teach. Instead we are using mediation to cajole parties into fragile settlement agreements to which they are not fully reconciled. Settlement is unquestionably an important goal of mediation. But perhaps more importantly, mediation should aim at helping people view conflict as an opportunity to understand and satisfy both sides' interests and needs, rather than as an excuse to descend into a destructive cycle of blame and recrimination.

Monday, February 16, 2015

Tune in

I will be a guest on the Doug Noll radio show on Thursday, February 19, 2015. The program is broadcast over the internet and its website can be found here. In case you miss the program Thursday night, however, I believe it will soon be available on the website.

I expect to be talking about the business of mediation, how mediation may be transforming the civil justice system, and whatever else comes to mind. I'm looking forward to the opportunity.

UPDATE (3/5/15): It appears the audio file was erased by the web radio station, so my interview is now lost to posterity. Doug promises that we will do another program soon however.

Friday, January 30, 2015

Accessing justice

A recent artical in the ABA Journal  on movements to license legal technicians to perform limited legal services cited a Bar Foundation study showing that most people encountering what the study called "civil justice situations" either handled the situation themselves, did nothing about it, or enlisted the help of friends and family. Only about 22% sought the assistance of people outside their social network. Naturally the ABA article viewed this situation as a potential opportunity for the legal profession to meet unmet legal needs, while questioning whether opening up opportunities for paralegals or other non-lawyers to serve these needs should be allowed.

To me, however, data like that found in this study suggests that the traditional justice system is either too intimidating, too expensive, or too complicated to represent an attractive solution for most people. That means there is a great need to make the traditional justice system less expensive, less complicated, and more accessible. There also appears to be a need to empower people to handle these "social justice situations" more competently themselves (since most people apparently are already handling these situations themselves anyway, for better or worse).

The data suggests opportunities here for mediators and other conflict resolution specialists as well as for lawyers and legal services technicians. If people are generally resorting to self-help anyway, and would generally prefer to solve their legal problems outside of the traditional justice system, it follows that they could use some advice on ways of doing that better. There are also opportunities to teach the general public more about how to solve common legal problems, since is appears that most people are going to run into them, and most of those people are going to try to deal with those problems themselves.


Graphic by Jeff Dionise from the ABA Journal article linked above

Saturday, January 24, 2015

Technology

If somebody were to ask me (actually somebody did ask me) about the future of conflict resolution, my answer would have to include technology. Technology is already enabling us to do things that would have been unimaginable only, say, 20 years ago. We now carry devices in our pockets that enable access to virtually any available information. I can tap my cellphone to pinpoint my location on an interactive map and find out instantly how long it will take me to get anywhere by any available mode of transportation; I receive updates on appointments or plane schedules without even asking for them; and I can instantly communicate, via Twitter, or Linkedin or Facebook, or any number of other means, with virtually anyone.

Technological change has already started to revolutionize the legal system. Tools like RocketLawyer and LegalZoom are enabling people to perform many functions themselves they previously could not do very well without a lawyer. Companies like eBay and Amazon have already set up online dispute resolution procedures that are handling many times the number of conflicts between buyers and sellers than can be handled by any court. New software is being developed every day to create forms and negotiate agreements. Because technology enormously increases the efficiency of generating legal documents, automation is already putting lawyers out of work, while creating new opportunities for some. Thus far these technological advances seem best designed to deal with smaller scale conflicts that people have not traditionally been able to bring to court anyway. For the most part, these changes help people manage legal problems that they would otherwise have had to handle on their own. But they also have the ability to scale up to problems that currently tend to go to court.

We can also already see that even the traditional court system is slowly automating more and more of its functions. Electronic filing is becoming the norm.Web interfaces are becoming more user-friendly. Eventually these more streamlined case processing functions should allow the courts to update antiquated rules and procedures and make the justice system more efficient.

Given the rapid pace of change, it would be perilous to predict what technology might allow us to do, say 20 years from now. But one prediction I would make about the generation that is growing up with access to all the world's knowledge in their pockets, a generation that understands the power of crowd-sourcing, that is adopting the sharing economy, that believes in do it yourself solutions, and that demands instant answers to almost any problem: that generation is not going to have much patience with ways of doing things that were more appropriate to the 19th century.

That generation should be open to experimenting with non-traditional methods of resolving both simple and complex conflicts that people currently still associate with old-fashioned lawsuits. The good news for mediators is that the tech-savvy generation should be receptive to mediation as a way to resolve conflict. This generation has grown up expecting instant gratification, empowerment, and cooperation. They would be expected to embrace ADR processes that are faster than court; more centered on the needs of the disputants; and less adversarial.

But to retain the favor of tomorrow's clientele, mediators themselves are going to have to embrace technology or we might get left behind by even more efficient ways of resolving disputes. We think of mediation as an advanced form of conflict resolution compared to the creaky old court system, but how advanced will mediation seem when someone comes up with an algorithm that decides cases for disputants? People who are used to being able to get an instant answer to any question from the palms of their hands, are going to be receptive to those kinds of solutions.

For now, I don't even have any particular "mediation apps" to recommend, though it seems obvious that mediators, like everyone else, will increasingly be doing more business online and using the tools their clients are using to schedule and conduct meetings, and to share information. But part of the challenge for mediators in the future will also lie in persuading disputants of the value of old-fashioned talking remedies for conflict--methods that can be traced back to traditions like sitting around the campfire smoking a peace pipe. We have to work even harder to persuade people to slow down and try methods as ancient as that, while at the same time remaining open to new techniques, because we live in a rapidly-changing world that puts a premium on innovative solutions.


Wednesday, January 21, 2015

Better politics

Everyone is talking about President Obama's little dig at his opponents when he reminded them of his two election victories. But the part of the State of the Union speech that should get mediators excited is the following:


"So the question for those of us here tonight is how we, all of us, can better reflect America's hopes. I've served in Congress with many of you. I know many of you well. There are a lot of good people here, on both sides of the aisle. And many of you have told me that this isn't what you signed up for - arguing past each other on cable shows, the constant fundraising, always looking over your shoulder at how the base will react to every decision. Imagine if we broke out of these tired old patterns.

 Imagine if we did something different. Understand - a better politics isn't one where Democrats abandon their agenda or Republicans simply embrace mine.

 A better politics is one where we appeal to each other's basic decency instead of our basest fears. A better politics is one where we debate without demonizing each other; where we talk issues, and values, and principles, and facts, rather than "gotcha" moments, or trivial gaffes, or fake controversies that have nothing to do with people's daily lives.

 A better politics is one where we spend less time drowning in dark money for ads that pull us into the gutter, and spend more time lifting young people up, with a sense of purpose and possibility, and asking them to join in the great mission of building America. If we're going to have arguments, let's have arguments - but let's make them debates worthy of this body and worthy of this country.

 We still may not agree on a woman's right to choose, but surely we can agree it's a good thing that teen pregnancies and abortions are nearing all-time lows, and that every woman should have access to the health care she needs.

 Yes, passions still fly on immigration, but surely we can all see something of ourselves in the striving young student, and agree that no one benefits when a hardworking mom is taken from her child, and that it's possible to shape a law that upholds our tradition as a nation of laws and a nation of immigrants.

 We may go at it in campaign season, but surely we can agree that the right to vote is sacred; that it's being denied to too many; and that, on this 50th anniversary of the great march from Selma to Montgomery and the passage of the Voting Rights Act, we can come together, Democrats and Republicans, to make voting easier for every single American.

 We may have different takes on the events of Ferguson and New York. But surely we can understand a father who fears his son can't walk home without being harassed. Surely we can understand the wife who won't rest until the police officer she married walks through the front door at the end of his shift. Surely we can agree it's a good thing that for the first time in 40 years, the crime rate and the incarceration rate have come down together, and use that as a starting point for Democrats and Republicans, community leaders and law enforcement, to reform America's criminal justice system so that it protects and serves us all.


 That's a better politics. That's how we start rebuilding trust. That's how we move this country forward. That's what the American people want. That's what they deserve."





Monday, January 5, 2015

Selma

The new movie Selma depicts the events that led to passage of the Voting Rights Act in 1965. There has been some controversy about the historical accuracy of parts of this movie, but I don't have much patience with those kinds of criticisms. Selma is not a documentary, even though it is based on historical events and does use some documentary footage in one part. Therefore, filmmakers are entitled to whatever artistic license they feel they need for the sake of heightening the drama. The point of the movie, which it succeeds at brilliantly, is demonstrating the power of a social movement to create change. In the process, the movie also puts Martin Luther King, Jr. front and center so that we can understand and feel the leader's personal struggle to balance the desire for change, the safety of his followers, his family's needs, and his sense of the most successful strategy for achieving the movement's goals.

As a lawyer, I can't help focusing on the role of the courts and the political system in the drama. The movie understandably puts the court proceedings somewhat in the background, except that the court case pops out at one point in the middle of a series of meetings and preparations. The movie offers a somewhat confusing portrayal of the aborted second march (based on the historical record, that day probably was very confusing), seeming to suggest that King obtained spiritual guidance that persuaded him to turn back. That may be true, but it is also true that he was thinking about the temporary restraining order he would have been violating by proceeding. Then we see the courageous Federal District Court Judge Frank Johnson (played by Martin Sheen) hearing a parade of witnesses before issuing an order that permitted the third march.

Was there ever an opportunity for peaceful resolution of this conflict? We see President Johnson acting at times a little bit like a mediator between King and Governor Wallace, but no real attempt was made at creating a dialogue that could resolve the dispute. The protesters had demands that could not be denied, and the local authorities were determined to resist those demands as long as they could. What the movie shows is that the state's violent resistance to the legitimate demands of citizens for voting rights only ended up helping the protesters achieve their goals.

Martin Luther King was not averse to negotiated resolution of conflict. But despite his strategy of non-violence, he did not exactly renounce more aggressive and adversarial methods either. In fact, the strategy of non-violent resistance was deliberately confrontational, and designed to provoke a violent reaction. That is why it worked. This is shown in the movie when King meets with two SNCC organizers and asks whether Sheriff Jim Clark in Selma was more like Commissioner Bull Connor, whose men had been caught on film brutally attacking protesters in Birmingham the year before, or like  Police Chief Laurie Pritchett, who had effectively defused protests in Albany, Georgia, by adopting a restrained policy toward the protesters. John Lewis responds that Clark was more like Connor, and that helped King decide that Selma was the right place to organize protests.

In the end, it was not the court case, or the peaceful protests, or the legislative process in Washington, that caused voting rights to move to the forefront of the nation's priorities in 1965. It was the first attempted march, the one that barely made it across the Edmund Pettus bridge before being met with horrific police violence, that shocked the nation into responding. It was violence that prodded the legal and political system into putting the laws in place that ultimately bring a measure of justice needed to reduce that violence. And it is the tension between the deliberate use or provocation of violence to achieve a movement's goals, and the desire to use the law to create a more just and peaceful solution, that creates much of the thought-provoking drama shown in the movie Selma.



Tuesday, December 30, 2014

Plea bargaining

In an exchange of letters published in the most recent issue of the New York Review of Books, commenting on an article last month about reforming the plea bargaining process by Federal District Judge Jed Rakoff in New York, Judge Rakoff defends his proposal to get judges more involved in plea bargaining by comparing it to the way mediation is offered to civil litigants in the same court. Here is how he describes mediation as he sees it being practiced: 
[C]ivil litigants regularly meet with magistrate judges or court-appointed mediators shortly after a case is filed and, in separate, confidential presentations to the mediator, describe their respective evidence and positions. The mediator then meets again with the parties separately and, based on what the mediator now knows about the underlying factual and legal positions, points out to the respective parties the pitfalls they each face.
As every mediator will tell you, it is not that the parties have been wholly unaware of these pitfalls in the past that makes mediation effective, but rather that the parties have never taken these shortcomings seriously because they were never previously described with the forcefulness and objectivity that a mediator brings. Duly shaken, the parties are now open to a settlement proposal from the mediator that they would have previously rejected out of hand.
I'm sure this is the way mediation is often conducted in federal court, particularly when judges preside as mediators. But it's not the way all mediators practice. Some purists would probably even argue that this style of mediation--which generally takes the form of a back and forth discussion with each side predominantly in caucus format, in which the discussion primarily revolves around the parties' "respective evidence and positions," in which lawyers tend to dominate the conversation, and which concludes with "a settlement proposal from the mediator"--is not mediation at all. It's a settlement conference. It achieves its intended result by presenting the parties with a neutral assessment of how the case might come out at trial. Its content seems to be based almost entirely on consideration of legal rules and rights, rather than any attempt to discover the parties' needs and interests. And not "every mediator" will tell you that cases are settled in mediation as a result of the parties being "duly shaken" by the mediator's power to describe the issues forcefully and objectively. Often cases are settled in mediation because it's the first time the parties ever had a chance to listen to the other side, and because they now more fully understand their perspective.

Anyone who's ever read my blog before, or perused the literature on mediation, knows that a discussion limited to the strengths and weaknesses of each side's respective legal and factual positions at trial merely scratches the surface of what can be accomplished in mediation. I sometimes remind parties in mediation that they need not be concerned at all with what might happen to the case in some alternate universe in which it goes to trial. After all, the case is most likely not going to trial, and therefore it can be resolved based on whatever concerns are important to the parties. At times in his earlier article, Judge Rakoff seems to recognize this reality, noting that hardly any criminal cases go to trial, and nearly all are resolved by plea bargaining. That would seem to open the door to consideration of a range of factors that  are not even relevant at trial, yet might prove a more satisfying form of resolution for the parties.

In the mediation of civil disputes, a lot of mediators reach far beyond the narrow focus on evidence and positions that Judge Rakoff is talking about. Parties have a chance to air their real grievances, for example, regardless of whether they might constitute a cognizable legal claim. They have a chance to uncover their real motivations, which might take the form of betrayal, jealousy, anger, resentment, disrespect, misunderstanding, or just plain inconsiderateness. And they have the chance to design solutions to the conflict that are simply beyond the reach and power of a court to impose.

It could be that because Judge Rakoff expresses too limited a view of the possibilities of civil mediation, he is also ignoring the possibilities of more meaningful reform of the criminal justice system. In the resolution of criminal cases, is the most promising road to reform really getting judges more involved in plea bargaining? Instead, we might try to incorporate some of the values and methods of the restorative justice movement. A full discussion of that topic is beyond my expertise, since I operate only in the civil justice system. I do know, however, that that model operates more closely to the ideal sort of civil mediation described above, than to the limited idea of civil mediation contemplated by Judge Rakoff. To bring the process of plea bargaining closer to that ideal, the parties to a criminal case should also be permitted to consider a range of interests beyond those meted out by criminal trials. The accused and the victim may, for example, be able to obtain restitution, forgiveness and understanding, rather than relying solely on punishment. Introduction of those concerns might be what is needed to bring plea bargaining out of the shadows and into the realm of respectability, and even enlightenment.