Sunday, November 23, 2014

Trials

Mediation is often touted as a better alternative to taking a lawsuit to trial. It usually is; but I believe that is still the wrong comparison to make in most cases. The vast majority--far more that 90%--of civil cases are never going to trial anyway. They are mostly going to be resolved by default, or by motion, or by negotiated settlement. And if by settlement, that will happen between the parties themselves or with the court's assistance or by mediation. It's true that a lot of cases can be settled by raising the specter of trial as an unappealing alternative, but that specter is not going to materialize in most cases anyway, because eventually most parties in most cases are going to find a way to avoid trial. They have to, because the courts don't have time to try more than a tiny percentage of the cases that are filed, and because it almost always becomes apparent in most cases that it just doesn't make sense to try them.

So if mediation is not an alternative to trial, what is it an alternative to? My answer is litigation. Mediation represents a method of encouraging parties to resolve disputes by cooperative instead of adversarial means. The sooner they can switch to a cooperative rather than an adversarial approach to resolving disputes, the sooner they can avoid or reduce the costs and risks of continued litigation. That includes motions, discovery, appeals, and all the other unpleasantness of litigation. Trial is only one potential step in that process. And probably the one least likely to happen.

Anyway, the problem with our civil justice system is not that we have too many trials. The problem is that we have too few trials, and we have too much of all the other stuff that happens in litigation. If we had more trials, then more young lawyers would have the experience of knowing what is important when the case finally gets to trial, and they probably would waste less time filing every possible motion, or deposing every last witness, or fighting over every last document or interrogatory answer. Because what you learn when your case finally does get to trial is that most of that activity is of little use at that point. Those discovery motions you filed? You're probably not going to look at those. All those documents you obtained from the other side? You're only going to mark a few of them as exhibits. That monstrous motion for summary judgment? It's going to remain in its box for the duration of trial.

Years ago I pretty much gave up on filing discovery motions, and decided to do whatever I could to prevent the other side from filing them. I found that I can almost always obtain better results by negotiating the resolution of discovery disputes rather than taking them to the judge. Then recently I successfully took a case to jury verdict where of necessity and by design our side didn't file any motions of any kind, or take any depositions, or designate an expert, or even depose the other side's expert. After that experience, I'm thinking I should renounce most of those activities also. It turns out to be a lot easier to surprise a witness on cross-examination if you have never taken his deposition. And a lot more fun also. And it saves the client a lot of money. I'm not saying you can avoid discovery or contested motion practice in every case. You can't. Some of it is quite necessary and important. But most of it is not.

Maybe this should be the test for deciding whether to take a particular step in a lawsuit: is it likely to help resolve the conflict? In other words, will the action you're thinking of taking be valuable if the case goes to trial, or will it bring the parties closer to settlement? If you don't need it for trial (and you're probably not going to trial anyway), and if it's not going to help bring the parties closer to settlement, then why are you doing it? You might just be exacerbating the conflict rather than helping to resolve it.

Sunday, November 9, 2014

Metrics

I was interviewed the other day for a possible article on court-ordered mediation. In discussing this topic, it's hard to avoid talking about such questions as settlement rates in various kinds of programs, or how mediation programs affect the workload of the courts. We are looking for statistical measures of the success of mediation as compared to other means of resolving cases in court (settlement conferences with judges, arbitration, neutral evaluation, lawyer-initiated settlement discussions, disposition by motion, trial, etc.) That also tends to be the way that judges measure the value of court-connected or private mediation programs. We can't help but wonder which method gives you the most bang for the buck.

But those kinds of measures only tell part of the story. Mediation has greater value than providing an efficient means of resolving cases. If that were all we cared about, we could probably devise even more efficient methods of resolving cases, say creating a computer program that could recommend a case's outcome, or tossing a coin. But the purpose of courts is not to reduce their workload, or even to dispose of cases. The purpose of the justice system is rather to allow litigants a chance to have their concerns heard, and to have their disputes resolved in a fair way. And mediation can probably do that more often than the courts can. In most cases resolved by the court system, the parties never get the chance to tell their stories, or have them heard and understood. Few cases go to trial, and the vast majority that don't are probably getting resolved in ways that do not allow much party participation. In addition to providing that opportunity for party participation, mediation also teaches participants ways of dealing with conflict that can empower them to resolve future disputes without the intervention of a higher authority. To assess the value of these kinds of intangible benefits, I would put more stock in surveys of party satisfaction, rather than relying solely on statistical measures of disposition rates.

I had a similar reaction yesterday at SCMA's fall conference when I attended a panel on restorative justice. In evaluating restorative justice programs, we tend to pay attention to such performance measures as recidivism rates, or to the disparities in treatment experienced by different ethnic groups in the traditional justice system. And those kinds of statistical analyses are undoubtedly important. What they don't tell you about, however, are the qualitative differences between an authoritarian system based on rules and punishments, vs. a system that relies on obtaining the offender's agreement to make it up to the victim in some way. It seems to me we might prefer a system that puts fewer people in jail and inculcates a greater sense of personal responsibility, even if it didn't achieve better results in terms of reducing crime rates. But we demand measurable results also, in addition to whatever intangible benefits accrue from a consensual, party-centered system. Fortunately for the field of restorative justice, it can demonstrate some impressive statistics in reducing the costs of crime, as well as beginning to transform the culture of the criminal justice system.

SCMA

I really appreciated receiving this memento of a memorable year as president of the Southern California Mediation Association, at our conference in Malibu. I didn't achieve everything I wanted to achieve. Some projects are still ongoing. But I really enjoyed my year leading an organization that performs much valuable work helping its members learn more about the field and fulfill their professional goals, and spreading the word to the public about the benefits of mediation.

One of the goals that I and others have sought to instill in the organization has been to maintain a positive, cohesive, open and welcoming atmosphere within the group. I frequently found myself using whatever mediation skills I have in dealing with internal conflicts (every organization has conflicts), one more illustration of my belief that learning about mediation provides value in any occupation in which you might find yourself, as well as in your personal relationships. I am proud that we never had a contested board vote during the year I have served as president of SCMA. I always felt that if we truly believed in the process we are espousing, we should endeavor to obtain consensus in all decisions.

It was satisfying to see the organization grow in size and in the scope of its ambitions. In my last president's message on the SCMA website, I outlined some of our main accomplishments this year--including expanding our outreach programs, moving forward with an initiative to certify mediators, expanding our geographical reach, improving communications, and advocating on behalf of mediators. I also thanked the people who made all of that possible, too many to list here.

Wednesday, November 5, 2014

Mitch McConnell on Conflict

Adopting a magnanimous tone in his victory speech last night, the presumptive future Majority Leader of the Senate had this to say on conflict in the political system:
“We do have an obligation to work together on issues on which we agree . . . .  I think I’ve shown that to be true in critical times in the past. I hope the president gives me the chance to show it again. . . . Just because we have a two-party system doesn’t mean we have to be in perpetual conflict.”
Senator McConnell's emphasis on finding common ground with political adversaries sounds commendable, and seems to represent a break from the strategy he pursued as Minority Leader. I'm not sure I would agree, however, that the two parties in our system do not have to be in perpetual conflict. It seems rather that perpetual conflict is built into the system. That is the whole point of having two parties. It's hard to think of any times in our country's history when the political parties have not been in conflict, and it seems unrealistic to expect that such conflict will end anytime soon.

The real question, and one I'd love to hear Senator McConnell expound upon at greater length, is how to deal with that perpetual conflict. How do two political parties, always at loggerheads, find a way to move forward together? Do the Republicans, now that they are assuming the majority, need to manage the Senate differently from the way the Democrats did when they were in the majority? Do the Democrats need to act differently as the minority party from the way the Republicans acted when they were in the minority? Do individual Senators from both parties need to abandon the kind of party discipline that McConnell himself attempted to enforce as Minority Leader?

Does McConnell have some ideas in mind for reaching agreement even when the views of the two parties differ, or was he only talking about making agreements in cases where the parties already agree? As Senator McConnell assumes the title of chief cat herder in the Senate, let's see if he can show us how to work together with the opposition and break the gridlock.


Tuesday, October 14, 2014

SCMA Fall Conference 2014

There is still time to register for the Southern California Mediation Association fall conference being held at Pepperdine University in Malibu on November 8, 2014. This year's conference, entitled "Roads to Resolution," will feature a number of panels discussing psychological considerations in mediation such as the psychology of greed, transference, the role of anxiety, and much more. Other panels will address innovations in the field such as mediator certification, organizational conflict management, the use of improv techniques in mediation, and various technological advances in the field. We are also for the third year in a row, featuring an advanced track for experienced mediators.

But the SCMA fall conference is not just for mediators and aspiring mediators. We are featuring panels on new opportunities to put mediation skills to use, new careers in conflict resolution, and opportunities to collaborate with other professionals. I am really excited about the quality of the presenters who have come forward this year. They have put together some thought-provoking materials which we are gathering on the online conference journal page, and have put a lot of time and effort into their presentations.

Our keynote speaker will be Los Angeles City Attorney Mike Feuer, being honored for bringing a more collaborative and problem-solving approach to the City Attorney's office. We will also be honoring Professor Russell Korobkin from UCLA Law School at a Friday night reception.

We're offering a wealth of information and a chance to connect with the Southern California mediation community. And it's worth the trip just for the scenery alone. For more information, click here.


Wednesday, October 8, 2014

Losing

So last night the Dodgers dropped the final game of the NL division series to the Cardinals, who have now blocked the Dodgers two years in a row from attaining their World Series goal. And what I'm reading in today's paper is about who to blame for the loss. Here is a team that set out to spend whatever it took and do whatever was necessary to get to the championship, and yet they came up short once again. It's hard not to want to blame somebody in the organization in that situation. If you were willing to do anything to win, and yet you failed to win, there must have been something you did wrong, right?

Certainly there is no shortage of candidates for blame. The ace pitcher who seems to lose control against this particular team at particular moments. The unreliable bullpen. The manager who made some questionable decisions. The general manager who lost some opportunities for better trades. The hitters who never quite seemed to jell as a team. The new owners who somehow failed to put all the pieces together in the right way.

Yet finding the right person to pin the blame for failure can't be the whole story. Particularly in baseball, an inherently cruel and tragic sport in which failure is pre-ordained. Under the inexorable rules of baseball, one team must always lose. That is true in other sports, but even more true in baseball where ties are not permitted, and the game can continue indefinitely until somebody finally loses. That means that no matter how well both teams play, no matter whether they have done everything humanly possible to insure victory, one team is going to lose anyway.

Baseball is designed to test the limits of human endurance in other ways. A pitched ball travels too fast for the batter to actually see where it is going in time to adjust their swing. Batters basically have to guess where the ball is going in order to hit it, which is why every hit in a baseball game seems miraculous. The game is so long that pitchers hardly ever finish a complete game. Most of the time, they must be removed when they reach their physical limits. So even the best batters repeatedly strike out, and the best pitchers have to be taken out. Everyone reaches the point of failure, as if by design. Furthermore, in baseball, even the best teams only win about 60% of their games over the course of a season, and the worst teams still win about 40% of the time. You do not see the long undefeated streaks that you sometimes see in football or basketball. No matter how well you play baseball, you still have to accept a lot of losing.

If the game is set up for failure, then blaming yourself for failure can only tell part of the story. Sure, there are always mistakes that you can point to to explain a defeat, and sure the team that makes the fewest mistakes will usually win. But taking the game last night as an example, there were also numerous breaks that could have easily worked out differently. Say Justin Turner who came in as a pinch hitter in the 9th inning, had hit a home run instead of striking out. One slight adjustment of the wrist in a single second could have changed the result. And then everyone on the team would be a hero and we wouldn't be looking for anyone to blame. Instead we'd be talking about how Clayton Kershaw pitched a hell of a game on short rest, and we'd say that allowing one tiny little three run homer in the 7th inning only showed that Kershaw held the Cardinals to a small enough lead that the Dodger hitters were easily able to overcome it.

I heard Orioles manager Buck Showalter interviewed on the radio this morning saying some wise things about baseball. He said that managers sometimes make unquestionably correct decisions that turn out to be disastrous. And sometimes they make very bad decisions that somehow work out. Yet fans are so results-oriented that they judge the quality of the decision by the outcome of the game, even though the game's score does not perfectly reflect the quality of the decisions or the quality of the play. I'm not saying the result is all luck. But I am saying that shit happens in baseball, and in life as well, and you can't blame yourself for all of it.

Thursday, September 25, 2014

When to fight

President Obama's speech to the United Nations this week is worth reading to study the evolution of the president's foreign policy views in response to new and continuing conflicts around the world. With respect to such crises as Russian aggression toward Ukraine, preventing a nuclear Iran, and the Israeli-Palestinian conflict, the president reiterated his belief in finding cooperative, negotiated solutions:
This speaks to a central question of our global age: whether we will solve our problems together, in a spirit of mutual interests and mutual respect, or whether we descend into destructive rivalries of the past. When nations find common ground, not simply based on power, but on principle, then we can make enormous progress. And I stand before you today committed to investing American strength in working with nations to address the problems we face in the 21st century.
But when it comes to the latest threat presented by the surge of ISIL in Syria and Iraq, President Obama took a different tack:
There can be no reasoning – no negotiation – with this brand of evil. The only language understood by killers like this is the language of force. So the United States of America will work with a broad coalition to dismantle this network of death.
So what puts this group beyond the pale? Surely they are still human beings, and many of their followers are motivated by the same concerns as the rest of us. Is there no possibility of accommodating whatever legitimate interests they may have, and involving them in the political process? Not while their murderous actions disqualify them from the benefit of more civilized solutions, is President Obama's answer.

While a lot of mediators and other peace advocates might find this answer disconcerting, many of us realize that not all problems are susceptible to a negotiated resolution, and that sometimes you do have to fight. (See Robert Mnookin's book Bargaining with the Devil, which provides some case histories of when to fight and when to negotiate.)

Even though pressing forward with a military solution to this problem, President Obama was still careful to stress that he was not advocating war with Islam.
So we reject any suggestion of a clash of civilizations. Belief in permanent religious war is the misguided refuge of extremists who cannot build or create anything, and therefore peddle only fanaticism and hate. And it is no exaggeration to say that humanity’s future depends on us uniting against those who would divide us along fault lines of tribe or sect; race or religion.
The president took particular care to invite other Arab and Muslim nations to join in condemning the violent and extremist actions of groups like ISIL. The message: Choose sides not based on ethnic or religious identities, but based on whether you are willing to adhere to principles of human rights, self-determination and peaceful resolution of conflict. If you're not willing to adhere to those basic principles, then you must expect the rest of the world to respond with force.

This message is bound to be disconcerting to those who would divide us by ideology or ethnicity or nationality or religion. It rejects the world view that on one side are arrayed the forces of good (white, Christian, capitalist, or whatever other traits one wants to associate with that side) vs. on the other hand the mighty forces of evil (whether fascists, Communists, Muslims, dark, etc.) Instead we should gather together from all regions and ideologies those who respect the ideals of peace and freedom, and together that far larger force will defeat the small and weak enemies of civilization.

Friday, September 12, 2014

LA Court Update

More than a year after closing most of the LA Superior Court's ADR program, in conjunction with consolidating and closing courtrooms around the county and other cutbacks, how is the court faring? For all the predictions of disaster, it seems this court system is managing surprisingly well. The courts have been able to maintain most trial dates, in the administrators' view probably the most important requirement for keeping the court processing its workload. Local rules have been modified to decrease the number of court appearances, especially in personal injury cases. Judges are figuring out how to muddle through with fewer staff positions, and parties are coping with a system that has significantly reduced their ability to interact with court personnel.  In other words, cases are still moving through the system, but they are getting less attention along the way.

Cases that used to be resolved with the aid of the ADR department's mediation are still being resolved somehow--presumably either through private mediation, or through negotiation by the parties' attorneys themselves, or through the court's expanded settlement judge program. What has slipped somewhat is the court's ability to resolve motions. In contested cases where the parties feel the need to file discovery motions or summary judgment motions or other motions, the courts cannot set those motions for hearing as quickly as they used to, and that has resulted in significant delays.

As a result, the court is still looking for help in processing its large caseload. Meanwhile there are still lots of mediators out there who would be willing to help. It's frustrating that we can't seem to figure out a way to put them back to work. In the court's view, what is lacking is an administrative structure. In the mediators' view, what is lacking is a push from trial judges to send cases out to mediation.

Perhaps we need to stop looking at mediation programs merely as a means of helping the courts clear their dockets. Mediation's true value is instead providing a means for parties to have their concerns heard and perhaps understood. That is something the courts are simply unable to provide for the vast majority of cases passing through the system. Most litigants experience the court system as a maze where they hardly ever find a chance to interact with the judge, and never have an opportunity to tell their stories. Finding a way to steer more cases to mediation would reduce the court's workload to some extent, but would also have the chance of increasing litigants' satisfaction with the justice system.

Sunday, September 7, 2014

Truth, justice and peace

It being a weak weekend for new movies, we decided to settle for The November Man, a grade B thriller starring Pierce Brosnan. Brosnan plays Peter Devereaux, a retired CIA agent who is lured out of his comfortable life in Lausanne to perform another mission that takes him first to Moscow and then to Belgrade. He's a cold-blooded killer, but eventually we learn that he might have some soft spots. I'm not going to summarize the convoluted and somewhat predictable plot, but will jump right to the moral dilemma at the heart of the story. It involves a Russian politician, Arkady Federov, who is on the verge of being elected the next Russian president. The CIA is interested in helping Federov out, since he is pro-American and might even lead Russia to join NATO. Now there's a tempting prospect in this time of increasing tensions with Russia over Ukraine and elsewhere. Think of it: finally a true end to the Cold War conflict that has been hanging over the world's head all our lives.

But it turns out that Federov is hiding some dark secrets, in which the CIA is also complicit. And Devereaux has to decide whether to help bury the dirty past in order to bring about peace in the world, or to expose Federov's crimes and cause his downfall, which will keep the US-Russia conflict alive. It's the age-old philosophical question of whether the ends justify the means, a common theme in spy stories. Naturally there is a beautiful woman involved who may have to be sacrificed in order to bury the scandal. Should he let her die, and thereby help realize the goals for which he played the spy game for so many years? Or should he help her reveal the secrets that will destroy Federov, tarnish the agency, and threaten world peace? Devereaux gives a rather cavalier response to this question when it is posed to him, but it actually represents a serious dilemma that is frequently encountered in attempting to resolve conflict.

One of the top reasons people advance for being reluctant to agree to a negotiated resolution of conflict is that they cannot abandon the quest for truth and justice. I just heard this feeling expressed recently in a mediation between two former business partners who each felt betrayed by the other.   World peace was not at stake in that case. Still peace between these two parties, possibly even forgiveness and reconciliation, might be achievable, perhaps only at the expense of pursuing justice. At first neither side was quite ready to let go of the conflict. Each still wanted to punish the other side and vindicate their positions in court. Eventually each conceded some ground to the other, making resolution possible.

I'm not sure we should ever try to talk people into sacrificing truth and justice in the name of peace. Instead we might talk about how difficult (and costly) it is to obtain truth and justice in our imperfect system. Or even better to help people appreciate at least a little bit of the other side's conception of truth and justice. That way people will sometimes realize that a negotiated resolution might represent the fairest possible solution.

What they won't be happy being told is that they should give up on the quest for truth and justice. That goes against the grain, not only of nearly every story Hollywood has ever told us, but probably of human nature.

Sunday, August 24, 2014

Philosophy

An entertaining new book on philosophy (who would have thought there could be such a thing) called Plato at the Googleplex, transports Plato to various settings in our modern world, and attempts to show that we are still grappling, or should be grappling, with many of the same problems that Plato addressed in dialogues written more than 2000 years ago. The book's Plato character makes you wonder whether, for example, Google does a better job of organizing knowledge than the ancient philosophers did, or whether we've made any progress in dealing with child rearing or love or figuring out how to live a better life.

This "Plato" leads the people who pass for our modern dispensers of wisdom (such as search engine specialists or Tiger Moms or advice columnists or cable news producers) through the kinds of Socratic dialogues meant to help them think about what is fair, or what is most satisfying, or how best to organize society, or what ideals are most important.

Naturally these dialogues made me wonder whether philosophy as exemplified by these Socratic dialogues has any relevance to the practice of mediation. It seems obvious that parties involved in conflict also need help in identifying what is most important to them, what results seem fair and why, and similar considerations that enter into resolving a dispute. In that way, the mediator is acting in some respects like a philosopher, by challenging parties to consider their noblest impulses, and by asking people to step outside themselves to try to imagine what would constitute a just resolution for all parties.

If we try to resolve a dispute only by making predictions about how the legal system might handle that dispute, we might fairly be accused of acting like we are stuck in Plato's cave. We are blinding ourselves to other considerations that might provide a better solution. On the other hand, if we venture outside the legal system, how do we identify the values that would lend legitimacy to mediated resolutions? This is where philosophy might be able to help.

We know that mediators sometimes need to act as an amateur psychologist, an amateur economist, an amateur diplomat, an amateur judge, or apply other kinds of expertise to help resolve conflict. That's what makes the practice of mediation so interesting. We might not have realized that mediators also need to act as amateur philosophers. But in helping parties move beyond vindictive or selfish concerns to discover their best selves, as well as finding principles that can guide them to resolution, mediators are practicing philosophy whether they know it or not. Reading Plato at the Googleplex makes me want to dig out my old copy of the Republic to explore further whether these ideas have practical value in dealing with modern problems.