Thursday, April 21, 2016

Four clients


The wise client approaches the initial consultation with a lawyer with some ideas of what the client is trying to accomplish and with some perspective on his or her own situation. For such clients, the lawyer should be prepared to explain carefully how the process is likely to unfold, and help the client better understand their options. A lawyer can be confident that a wise client will listen carefully and trust the lawyer's advice. But not all clients are wise.

The simple client, for example, will come in for an initial consultation feeling aggrieved and agitated but uncertain what they are trying to accomplish or how to go about it. For example, an individual might believe they have been fired from their job unfairly, but have no idea what remedies might be available or whether they are worth pursuing. These clients tend to spew out a long, convoluted story that recounts in great detail all of the circumstances giving rise to their injury. For such clients, the lawyer must try to listen patiently, but their legal training teaches them to sift through the story trying to find elements of potential legal claims in it, while ignoring other parts that do not support a cognizable claim. Lawyers often try to educate this kind of client on those elements, in an effort to get them to focus on facts that are necessary to proving available legal claims. The lawyer might point out, for example, that unfair business decisions are not necessarily actionable, unless they were made for an improper purpose, such as discrimination based on age or sex or ethnicity. That prompts the client to see the story in a somewhat different way. In the process, a lot of what the client initially thought was important gets left on the cutting room floor, and the resultant story, while legally coherent and based on facts that that lawyer and client think they can prove, may not end up satisfying all of the client's concerns.

Lawyers might be better advised to figure out an appropriate way to present the client's actual grievances to the other side, rather than compressing them into a narrative judged only by whether it states a provable legal cause of action. Because, after all, most of the time the merits of the legal claims are never going to be finally adjudicated anyway, since the vast majority of cases end up getting resolved by negotiated agreement. And to reach that negotiated agreement we often have to bring back into the picture some of the client's concerns that got left out of the initial framing of a legal complaint. Those concerns might even prove more compelling to the other side than the story the law encourages parties to contrive.

Then there is the wicked client, who comes to a lawyer having already framed their problem into the shape of a legal dispute. What they want to know is how their claim is going to be decided. Are they right or wrong in thinking that the court is going to favor their obviously justified actions, and punish the dastardly conduct of the other side? Or less often, they might express worries that the court will find them liable for their actions. For these clients, the lawyer's training teaches them to advise the client on the merits of their legal claims and defenses, and the factors that might affect their adjudication. Even though lawyers hedge their bets with many caveats and uncertainties, they also need to show the client that they are capable of acting as a strong advocate for their cause. They must show sympathy for the client's view, and they must try to make the strongest case they can, even while pointing out potential obstacles along the way. What the client hears from this discussion usually tends to vindicate their initial point of view. They now feel armed with even more legal arguments that they can use to vanquish their adversary. They tend to discount the facts and arguments that might favor the other side.

What lawyers should more often be emphasizing to this latter group of clients, however, is that in the vast majority of cases, it is unlikely that any court or tribunal is ever going to determine the merits of their dispute. Because, as stated above, cases tend to get resolved by negotiated agreement. So the wicked client's belief that they are going to win the case may not be as important as they think. Instead of pounding the other side with the righteousness of their cause, they should be thinking of what tools they can use to help bring the case to a favorable resolution. The wicked client needs a better understanding of how the other side views the dispute, and how to satisfy the other side's needs and interests to bring the case to resolution.

Finally there is the client who does not know how to ask. This client may be shell-shocked: injured in an accident, facing separation from a spouse, feeling deceived in a business transaction. The lawyer needs to answer questions for this client that the client does not even know how to formulate. At the same time, the lawyer should try to help this client articulate their own needs, otherwise the lawyer is in danger of presuming knowledge of what the client wants, and substituting his own ideas of what the client's goals should be for the client's actual goals.

Even though there are four (at least) kinds of clients, just like there are four kinds of children addressed at the seder table--and most clients, like most children, combine aspects of all four types--they are all really asking the same question, which is what does this all mean and what is my part in it. And we should be trying to answer them in a way that does not encourage their worst tendencies, but instead helps them to figure out what interests and needs are most important to them, to develop some perspective about the situation, and to achieve a positive resolution.

Saturday, April 16, 2016

Avoiding Litigation

The ABA Dispute Resolution conference, held this year in New York City, presents an interesting mix of programs on mediation, arbitration, negotiation and collaborative practice. The conference manages to combine these fields, even though the cultures of mediation and arbitration don't always mesh very well; in fact they sometimes seem like opposites. But practitioners in both fields seem to get along. What they have in common is the desire to avoid litigation. Having a common enemy makes friends of us all.

Thus, at one of the panels I attended, in-house counsel acknowledged that they require employees to sign arbitration clauses so that the company can avoid the burden and expense of class action lawsuits. Mediation or arbitration of employment disputes is also encouraged to avoid the costs of ordinary litigation, especially the cost of discovery disputes. At another session, the benefits of early dispute resolution were mainly described in contrast to the enormous expense of motion practice and document production found in litigation. These concerns are valid, and it is absolutely correct that ADR can and should be promoted as a faster and cheaper alternative to litigation. But perhaps more attention should be paid to the question whether we can reform litigation--the "normal" conflict resolution process--instead of treating it as the bogeyman.

When I hear attorneys and clients complain about the high cost of discovery and motion practice in litigation, my first thought is that we should attack that problem more directly. We could greatly improve the court system by reducing the number of motions filed, and the amount of discovery sought. Most of those efforts are wasted anyway. Those pre-trial battles usually do not help much in the assessment of settlement options. They may even cause so much negative reaction from the other side that they hinder settlement. And even for the relatively rare cases that go to trial, trial counsel usually find that the boxes containing all those discovery disputes and other pre-trial motion practice are hardly ever opened. I firmly believe that if litigators could learn to find common ground where possible with their adversaries, instead of reflexively opposing everything the other side says, we could remove much of the waste and negativity that pervades litigation. We could also achieve better results for clients by negotiating the resolution of disputes within lawsuits, especially discovery disputes, rather than asking the court to decide them all, and we would save clients a lot of money by doing that.

But even if we were to assume that all of the expensive discovery and motion practice in the court system were necessary--and much of it unfortunately is necessary or unavoidable--it still seems to me that we are selling ADR short by selling it only as an alternative to a costly and inefficient litigation system. We ought to be touting the positive benefits of mediation and other negotiated resolutions of conflict--the opportunity for parties to control the outcome, to achieve greater understanding of the opposing party's interests, to resolve disputes in a more constructive way--instead of suggesting that we like ADR just because it is faster and cheaper than litigation.

If all we wanted was a cheaper and faster means of resolving disputes than presented by the court system, we could roll dice to determine outcomes. The process of dispute resolution must have higher aspirations than simply finding a cheaper and faster alternative to litigation.


Thursday, March 31, 2016

Mediation's Potential

A couple of recent experiences as a consumer of mediation services have made me wonder whether the practice is living up to its full potential. In one case, when the mediator and opposing counsel started talking about what was going to happen at trial, I told them that there was no way the case was going to trial. They already knew I had done my best to avoid engaging in motion practice, discovery or other forms of litigation activity, and they also knew that the cost of taking the case to trial would almost certainly exceed the amount in controversy, and that my clients probably couldn't afford it. Therefore I didn't see much point in talking about what was likely to happen at trial. I wanted to talk about a fair and practical settlement.

The mediator was not happy with this approach at all. He told me I should never admit to the other side that the case was not likely to go to trial, since that would take away some of my "leverage." Then he spent a lot of time with both sides talking about the strengths and weaknesses of my clients' defenses to the claim, even though no tribunal would ever adjudicate those. The mediation "worked," as the case settled at the mediation, for about the amount we thought it would, but I found it strange that the mediator was more tied to the adversarial system than I was. This was mediation as it is commonly practiced, in the shadow of the court system. It is mostly focused on assessing the benefits and costs of continued litigation, and forecasting possible trial outcomes, rather than finding much out about the needs and interests of the parties.

Not that there is anything terrible about comparing the costs and risks of continued conflict to the value of settlement. I use that technique to some extent in most of the mediations I conduct, because parties usually want to be reassured at some point that the deal they are contemplating is better than the alternative of proceeding with litigation. But we are not really breaking out of the litigation mindset when we limit the discussion at mediation to trying to predict how the court would resolve the case. We are not practicing an "alternative" form of dispute resolution when we are solely preoccupied with what happens in court. And unless the parties truly care about how a hypothetical court might decide the legal questions involved in their dispute, they do not need to base their settlement on that measure. They are free to resolve it based on whatever values and norms are important to them.

In another mediation I attended recently as an advocate for one of the parties, I also observed that the mediator was spending most of her time talking about how the trial judge in our case might rule on some pending motions and evaluate some of the claims. Though these legal issues were certainly important, I was frustrated to be spending so much time having an academic argument with the mediator about these issues. I think it might have been more productive if the other side could have learned something about the challenges facing my client's business, or if my side could have learned more about some of the factors influencing the other side.

At the end of the day, I finally had a chance to talk one-on-one with counsel for the opposing parties, and found that short discussion more useful and informative than anything that occurred the entire rest of the day. I wondered why the mediator had been so intent on keeping the parties apart all that time. It was not something I was demanding.

We need to spend less time talking about "the case," and more time talking about the parties' interests. We need to spend less time talking about a hypothetical trial, and more time trying to understand what is bothering and motivating the parties. That is how mediation can live up to its potential, instead of operating as a cut-rate imitation of the adversary system.


Wednesday, March 16, 2016

Supreme Court poker

Here is how one high stakes negotiation is currently playing out: First a recap. On February 13, 2016, Justice Scalia's unexpected death created a vacancy on the Supreme Court.

Within less than a day, leading Senate Republicans made a pre-emptive opening demand, announcing that they would refuse to consider, even to hold hearings for, any nominee the president proposed. 

Next, President Obama announced that he would proceed in the normal course anyway, and he also invited the opposition to the White House, where they meet in the Oval Office on March 1, 2016. Presumably the parties gauged each other's resolve, presented their respective best alternatives to a negotiated outcome of the dispute, perhaps suggested some ways of reaching a resolution. But no resolution of the dispute was announced. 


Both sides then started recruiting allies and public support, engaging in a public relations campaign. The Republicans dug up an old speech by Joe Biden suggesting a similar tactic during the Bush years to the one they are proposing. The president started floating names on his short list to judge public reaction. Senate Republicans stuck to their guns, and appeared unmoved by any of the names on the list.

Finally today, March 16, 2016,  President Obama announced the appointment of Merrick Garland. He is the Chief Judge of the most prestigious court in the country next to the Supreme Court, a man with unimpeachable credentials, and a political moderate. Garland is also 63 years old, meaning his tenure on the Supreme Court will be limited. 

From the Senate Republicans' point of view, this is the best deal they could possibly hope to get, assuming that they have to accept an appointment by a Democratic President. Their only better alternative is to elect a Republican President in November, a prospect that has to be regarded as somewhat less than a certainty, and also an outcome of which not all of them are so enamored, given that the Republicans' leading candidate has been emphatically denounced by both the last two Republican presidential candidates, and that he is likely to transform their party in ways they might not find so comfortable. The implicit threat is that if they don't confirm Garland, President Hillary Clinton will put forward a new nominee much less to their liking. 

President Obama's tactic is already encountering a small amount of displeasure from his own base, and runs counter to what some other presidents have done when they spar with the Senate over confirmation of a Supreme Court nominee. Reagan, for example, played to his base by putting forward the very conservative Robert Bork, but when Bork was rejected by the Senate, Reagan backed down and submitted the more moderate Anthony Kennedy. When Nixon's conservative pick Clement Haynesworth was rejected, in a fit of pique he first tried to double down and submit someone even more unacceptable to the Senate, Harrold Carswell, but Nixon eventually relented and appointed Harry Blackmun. President Obama is making the opposite play, giving in to the Senate up front by appointing a moderate, rather than provoking them with a liberal.

Conventional negotiating strategy suggests leading off by demanding even more than you expect the other side to agree to, leaving plenty of room to back down later after the other side's expectations have been set. On the other hand, there is also a time-honored technique sometimes employed in labor negotiations, sometimes in eminent domain negotiations, sometimes in negotiating contracts with athletes or actors, less often in litigation settlement negotiations, for one side to throw out the best offer (from the other side's point of view) that they are ever going to make right up front, to let the other side know that the more they haggle, the worse the deal will get for them. The technique has some serious risks, but it has some real strengths also. It makes sense, for example, when time is limited and appearances are important. It appears to be the game the President is playing here. If he chose a more conventional strategy of nominating a liberal judge, there is always the possibility that Republicans could have still defeated him by raising objections on the merits, holding extensive hearings, and running out the clock. Given that the Republicans had already announced that they would not do that, but would instead simply sit on whatever nomination the president made, it makes some sense that Obama put forward a name to which the opposition could have no valid objections on the merits.

Not surprisingly, we are already seeing some backtracking from the Republican side. Maybe, some are saying, we would confirm Merrick Garland in the lame duck session of Congress after the election. Of course that would be inconsistent with the rationale they have been giving for refusing to consider any nominee, which is that it should be up to the president the voters choose in November, but no matter. Allowing a vote in the lame duck would still give Senate Republicans the chance to grab the best deal they can get after finding out whether their alternative looks any better. 

So far (it's still the same day this announcement was made) all we're hearing from the White House is that there is no reason to wait until the lame duck session in December. But I wouldn't be too surprised if President Obama's next negotiating move is to tell Senate Republicans that if they don't confirm this nominee before the election, his name is going to be withdrawn. Deadlines are also a risky tool in negotiations, but they also can be used as a display of strength. I don't usually counsel parties in negotiations to employ deadlines and ultimatums, because too often parties need to back down from them when they are tested. The tactic might work in this case, however, depending on how bad the Republicans' November prospects end up looking this summer. On the other hand, President Obama may feel no need to add additional pressure, and he also probably feels that Merrick Garland would be a great addition to the Supreme Court, even if he has to wait until December for that to happen. In the meantime, it's been an interesting negotiation to observe.

Saturday, March 12, 2016

"Never Trump" and the Prisoners' Dilemma

A variation of the Prisoners' Dilemma problem may be playing out in the Republican primary campaign. Those elements in the party who are still seeking to prevent Trump from becoming the nominee have apparently abandoned their original tactic of attempting to coalesce support around the strongest non-Trump candidate while encouraging weaker candidates to drop out. Instead, the plan of the Never Trump movement is now to encourage all three remaining candidates to remain in the race, but act more cooperatively toward each other so that each can amass the maximum number of delegates in the states in which each is running most strongly, and thereby prevent Trump from gaining a majority in advance of the convention. Thus, Rubio and Cruz are supposed to reduce their efforts in Ohio to allow John Kasich to win there; while Kasich and Cruz pull back in Florida to allow Marco Rubio to win.

Most likely this strategy is doomed to failure if Marco Rubio, as currently projected, cannot beat Trump in Florida. But even if it remains viable for a while, there will still be strong incentives down the road for all three non-Trump candidates to defect and support a Trump candidacy, rather than to remain cooperative so that one of them (or somebody else) could instead succeed. It is not even clear that any of these three candidates views the prospect of a Trump candidacy as the worst possible outcome as opposed to the candidacy of some other candidate besides themselves. Thus the incentives to cooperate are already weaker than those presented by the classic Prisoners' Dilemma problem. And the incentive to defect to Trump, instead of to cooperate with the Never Trump forces, becomes more powerful as the process moves toward the convention.

If Trump is short of delegates, naturally he will seek to induce one of the other candidates to drop out and support him, offering whatever inducements he needs to offer (e.g., the vice-presidency or a Cabinet position). And each of those candidates might prefer to support Trump rather than cooperate with the anti-Trump forces, especially if they cannot match Trump's offer. Trump has already succeeded in getting two former candidates (Christie and Carson) to support him, and it would not take a genius negotiator to get Rubio or Cruz or Kasich to do the same in the right circumstances. (Cruz might be a special case since he has a history of taking positions that do not seem to result in the best outcome either for himself or the group, but for purposes of this discussion, we probably don't need to delve into each candidate's idiosyncrasies too deeply.)

In the highly competitive environment of this election, I predict that all of these candidates are likely to defect in some form or other, as each seeks his own best personal outcome. They will not continue to cooperate with the Never Trump movement. At the same time, each of the candidates has an incentive not to rock the boat too much; they should all want a harmonious convention and unity in support of the nominee. These powerful incentives to defect rather than assist with a strategy that might benefit one of them but would result in a bloodbath in Cleveland, make it highly likely that, barring unforeseen events, Trump will end up as the Republican nominee. I'm not saying that is an ideal outcome. But it's hard to see any scenario in the Republican Party right now that will accomplish what the Republicans have almost always accomplished in past elections, which is to unite the various factions in the party around whomever might be their strongest candidate, whether that's Trump or someone else.

Thursday, February 11, 2016

Neutrality

Neutrality is a cherished concept in mediation, but the term is interpreted differently by different mediators. Some take it to mean being strictly impartial and fair toward both sides in a dispute, in the way that a judge should not let his or her biases affect the outcome, or show favoritism toward one side or the other. I take it to mean being indifferent toward the outcome of the process, leaving the parties to achieve a resolution acceptable to each side, but assisting both sides in satisfying their interests to the greatest extent possible. To do that mediators play a different role than judges or arbitrators, at times coaching one side or the other on their negotiating tactics, and at other times playing the devil's advocate. It's more of a shifting partiality, than an attempt to remain impartial.

That is why the ideal mediator does not necessarily resemble the image of blind justice, holding a scale that awaits the evidence to be piled up on each side. The ideal mediator is more likely to be someone who each side thinks the other side will listen to. In some cases, that ideal mediator might resemble a judge or other authority figure, if each side thinks the other is prone to respect such authority figures. In other cases, it might be best to bring in a friend of the other side, or someone with similar background and sympathies.

These thoughts on neutrality were brought to mind by today's story of the resolution without further bloodshed of the stand-off at an Oregon wildlife refuge between the federal government and so-called militia members who had seized the facility as a protest. It turned out a Nevada assemblywoman named Michele Fiore played a critical role in talking some of the protesters into surrendering to federal authority. Ms. Fiore is not someone one would think of as a "neutral" party in the dispute, being famous for posing with guns and taking outspoken conservative positions. But she was someone the protesters viewed as sympathetic to their cause, someone they would listen to, and someone they felt they could trust. She was one of them. Her role was to assure the protesters that they could trust the government enough to lay down their weapons and allow themselves to be taken into custody, and that in return they would not be harmed.

Certainly the FBI must have used a lot of tactics well known to negotiators and mediators in bringing about a peaceful resolution of this dispute. But when it came to finding someone who could act as a "neutral" between the government and the protesters, Michele Fiore fit the bill well.

Friday, January 15, 2016

The Hateful Eight

Are there negotiating lessons one can learn from the world of Quentin Tarantino? Mediators tend to believe that if we encourage parties in conflict to continue talking even when resolution seems unlikely, they will eventually reach a level of common understanding that will enable both sides to find an acceptable way out of conflict.

Films like The Hateful Eight and most other Tarantino films, severely test that assumption. The characters jabber endlessly. They examine each problem in excruciating detail. They lay out all of the various scenarios for escape from their predicament (their best alternatives to a violent outcome). At one point in The Hateful Eight, a character is jumping to conclusions about which of the three guys lined up against the wall might be responsible for poisoning the coffee. Sam Jackson's character tells him to slow it WAY down. He does not believe you can short-cut the process of detailed examination of all of the evidence. He wants to talk some more. And eventually we find out that nobody has been telling the truth, and nothing is exactly as it seems to be.

But all of this talking cannot save the characters in Tarantino's world from their fates. Anyone who has seen his previous films knows that this one is likely to end with an explosion of violence. Once in a while, the hero in a Tarantino movie is allowed to ride triumphantly off into the sunset, but only after vanquishing all of his or her enemies. More often, all of the characters in these films are doomed. There is never anything like a "win-win" solution available. Only "win-lose" or "lose-lose."

So is there a point to all of the ceaseless chatter in these movies, if negotiated resolution to conflict is impossible? At the very least, it is usually entertaining. No matter how talky or long these movies are--and they are all talky and long--I am rarely bored watching a Tarantino movie. Maybe because the tension of a violent resolution to conflict is always present. But in addition to having entertainment value, all the talk still seems to have another purpose. Understanding the sources of their conflicts, and the possible means of escape, is still important to these characters. They are not allowed to die in ignorance. They must meet their fates fully informed of the circumstances. And that gives them a certain level of dignity, and proves that there is value in talking a problem out fully, regardless of whether or not that problem can be resolved by negotiated agreement.

Monday, November 30, 2015

Spotlight

Confidentiality agreements often serve the short-term interests of the parties to a particular dispute: An enterprise accused of wrongdoing has a strong interest in keeping its alleged wrongful actions secret, both to protect its reputation and to dissuade others from suing. At the same time, individuals bringing such accusations have an incentive to agree to requests for secrecy, which are often demanded in exchange for settlement payments.

In the new movie Spotlight, in which a motion to unseal court records plays a central part, the practice of entering into confidential settlement agreements providing a small amount of compensation to victims of sexual abuse by Catholic priests, is portrayed as a shameful means of allowing the Church to cover up crimes for decades and keep predators at large. The legal system's complicity in the sort of confidentiality that allows evidence to be suppressed, criminals to be spirited away, and victims to remain in the shadows, is portrayed as an obstacle that must be overcome in order to allow justice and healing for abuse victims.

It is important, however, to distinguish the kinds of protective orders and confidentiality agreements that had to be defeated in the Church abuse cases, from the need to conduct settlement negotiations in private, without fear that admissions or offers might be used against parties in that particular case.

I have been involved in efforts to protect the confidentiality of settlement negotiations--mediation confidentiality in particular. Confidentiality is essential to the practice of mediation and to settlement negotiations in general, as the evidentiary bar against the admissibility of settlement negotiations encourages parties to speak candidly without fear that their offers and admissions may be used against them in later court proceedings. Without the shield of confidentiality, parties might be reluctant to engage in spirited settlement negotiations, and cases might be less likely to resolve in a consensual manner. Without the protection of confidentiality, parties are more likely to be forced into adversarial confrontation, and less likely to find a cooperative means of obtaining resolution. Without an evidentiary rule against the admissibility of settlement negotiations, parties are more likely to move back toward needlessly destructive litigation.

While the confidentiality of settlement negotiations generally deserves strong protection, courts must still be mindful of the over-use of protective orders and other efforts to hide wrongdoing in individual cases from public view. This is where the courts have to balance the interests of the public, including the interests of other potential victims of wrongdoing, against the desires of the parties in a particular case to keep facts out of the public view. Confidentiality clauses in settlement agreements are even more problematical than the use of protective orders, because usually judges have no opportunity to oversee their use, and parties are often too willing to agree to them. The situation in Spotlight illustrates one scenario where the routine use of confidentiality clauses may not have served any of the parties' long term interests. Parties and their attorneys should therefore be mindful of the potential over-use of protective orders and settlement confidentiality provisions, which can create traps even for the parties in a particular case, and which may also harm the public interest.


Saturday, November 14, 2015

SCMA fall conference recap

Congratulations to outgoing president Robyn Weinstein, incoming president Floyd Siegal, conference chair Hass Sadeghi, executive director Anne Sawyer, and all the other volunteers who helped create the Southern California Mediation Association's successful fall conference last weekend. The conference's theme, Conflict Revolution, made clear that our organization is moving well beyond the goal of helping people learn to mediate litigated disputes. Our goal is to change the world!

Ken Cloke
This goal was emphasized not only in panels such as the one described in my previous post that addressed new roles for mediators and mediation, but was also addressed in panels on critical race theory, LGBT rights, and other timely topics. Peter Robinson kicked off the conference with what amounted to a synopsis of an entire course on apology and forgiveness. And Ken Cloke closed the event by expressing the view that global problems from civil war to climate change can only be solved by the application of principles learned by mediators.

It's been my privilege to serve on SCMA's board for the past five years, including as president last year. It's a committed group of idealists filled with positive energy and intent on changing the world, and I have gained a lot from knowing these people.

Sunday, November 8, 2015

Urban Projects

Streetsblog
There is a half-finished Target store in my neighborhood that stands as a perfect metaphor for the problems with using litigation as a means of resolving developers' and the community's interests in urban projects. With construction halted because of claimed height violations, the unfinished building has been left in limbo. The community now has to live with something that is ugly; that is enormously wasteful; and that has been sitting there unfinished for a long time. Its continued unresolved status satisfies neither those opposed nor those in favor of the project.

I used that metaphor while introducing one of the workshops at the SCMA fall conference yesterday, a workshop on urban projects organized by Noah Stein. The panel brought together developers, community group leaders and an official with the MTA to talk about how mediation might be introduced into the planning and approval process to alleviate the adversarial nature of the current system. It was pointed out that zoning codes are so complex that variances are almost invariably needed, leaving developers at the mercy of changing political winds, as well as at risk of penalties for violations. There was also general agreement that the current CEQA process, which dates back to the 1970's, is in need of reform, if not complete overhaul. It leaves developers and planners after all of the environmental reviews and comments, still at the mercy of one opponent of the project willing to resort to litigation challenging the project's approval on the grounds that some negative environmental impact of the project was not fully considered.

So perhaps structural changes in the law are needed before we can design a more collaborative rather than adversarial type of planning and approval process. Still there was general agreement that even within the current system it is important for planners and developers to work with community groups and property owners early in the design process, so as to gain the community's trust, and to help create projects that will be more beneficial to all of the various competing interests. While it might be too late effectively to mediate disputes among project proponents and opponents after litigation has commenced, there does seem to be a place earlier in the design and planning process for the kinds of facilitated dialogues that mediators are trained to conduct.