Saturday, December 13, 2014

Joint sessions redux

Joint sessions have suddenly shown up as a hot topic again. The fall issue of the ABA Dispute Resolution magazine features an article by Eric Galton and Tracy Allen alarmingly called "Don't Torch the Joint Session," which decries the "disturbing trend" of eliminating the joint session from mediation. LA mediator Lynne Bassis has an article in the same issue entitled "Face-to-face Sessions Fade Away." And New Zealand mediator Geoff Sharp on the Kluwer Mediation Blog has written a piece with the strange title "The Californication of Mediation," which identifies this disturbing trend as emanating from my home base, the well-developed mediation market of Southern California. Eric Galton has even formed a facebook group called "Save the Mediation Joint Session and Promote Party Participation."

What's going on here? Are joint sessions dying? Do we need to create a movement to "save" them? As a proponent of joint sessions myself, I support efforts to increase their use, and to educate attorneys and parties on the benefits of joint sessions. I agree that for some time now, the trend has been toward more reliance on caucus-style mediation. This trend feeds on itself: as caucus mediation becomes the norm, part of the very culture, parties and attorneys expect to remain in separate rooms throughout the process, and even refuse to try joint sessions. Concerted efforts will probably be needed to reverse this trend.

In my own mediations. attorneys frequently tell me that  joint sessions are a waste of time, or that joint sessions allow lawyers to grandstand, or that joint sessions will just inflame the parties and set back their efforts at resolving the dispute. Parties also often express reluctance at meeting with the other side, with whom they have usually had little or no contact since the dispute arose. I suspect these feelings arise from experiences with joint sessions that are not being conducted properly, i.e., that to the extent mediators are allowing joint sessions, they are doing them wrong. I think these attitudes about joint sessions also arise from ignorance or laziness or fear or distrust.

Because I encounter these objections frequently, I find myself in my own mediation sessions attempting to sell attorneys and parties on the benefits of joint sessions. It's going to be more efficient, I might say. Rather than listen to me repeating what the other side is telling me, why not hear it directly from the horse's mouth? Or I might try to explain to the parties that we will set some ground rules that will prevent the joint session from turning into an opportunity for grandstanding. What we're going to do instead is share information, and allow the parties to have the chance to listen and find out what's really bothering the people on the other side of the table, and to tell them what is bothering you. Face-to-face communication has a lot of advantages over shuttle diplomacy.

As is explained in the articles cited above, mediators should understand that face-to-face communication, conducted properly and with guided party participation, performs a crucial function in the mediation process. It should be the norm, not the exception. This kind of communication is what allows parties to understand the conflict from the other side's point of view, and to find out what is most important to them, which is what opens the door for breakthroughs. And these face-to-face encounters can also allow parties to achieve genuine satisfaction and healing, rather than settling for just settling out of necessity to avoid an even more unpleasant litigation process.

It's still an uphill battle in many cases, however, to persuade mediation participants of the benefits of joint sessions, so I agree with these authors that we should do more to resist the slide of mediation into a caucus-only model, and to help consumers of mediation appreciate the benefits of joint sessions.

Thursday, December 11, 2014

The Grand Bargain

The city of Detroit emerged from bankruptcy yesterday, a process that was successful because of something the participants labeled the "Grand Bargain." The Grand Bargain was a complicated plan, but its key feature involved the transfer of the city's extremely valuable art collection to a charitable trust, in exchange for about $800 million in new financing provided by the state and private parties. It sounds like a clever solution to a difficult problem.

What jumped out at me from this morning's LA Times article, was this comment from bankruptcy professor Laura Bartell describing how the parties managed to hammer out the deal: “When everyone realized the situation, there wasn’t a lot to argue about.” Really? Nothing to argue about? From what I had heard about the situation leading up to the Detroit bankruptcy, there should have been a lot to argue about. Depending on your point of view, you could point the finger at a profligate city administration, or poor planning, or at greedy unions, or the state for treating the city unfairly, or the surrounding suburbs that pulled taxpayers out of the city, or the decline of auto manufacturing and other industries. All of these various stakeholders had legitimate grievances against the others. All represented competing interests that had to be balanced.

To resolve the city's financial crisis, one can imagine representatives of all these competing interests gathered in a room blaming one another for the city's problems, and ultimately forcing all of the parties to make the concessions and contributions necessary to get the city back on its feet. Probably that happened to some extent. But the professor's comment suggests that something else happened also. And that something else could have arisen from an understanding gained by all of the participants of the realities of the situation, and a focus on available solutions.

To say that when everyone fully understands the situation, there isn't a lot to argue about, seems an apt description of an ideal kind of mediation or negotiation process. Arguing about responsibility for the problem, while often unavoidable, doesn't necessarily lead to resolution, and might even lead the parties away from making a deal. That's especially true in bankruptcy court, where people who mismanage their businesses, and fail to pay their debts still often walk away free. What is needed is recognition of the realities of the problem, and the creativity needed to devise solutions.

ACG Detroit

Wednesday, December 3, 2014

Frozen conflict

I wasn't familiar with the term "frozen conflict" until I saw it applied to the current stalemate in the Ukraine, but apparently it has been used to describe other similar disputes in the past, especially dealing with other former territories of the Soviet Union. In the Ukraine, "frozen conflict" seems an apt description of a situation in which neither side can win, at least for the moment, but neither can formally accept the status quo either. The government of Ukraine refuses to acquiesce in the illegal seizure of a portion of its territory, but cannot reclaim that territory from Russia either, especially since a large number of people in the eastern part of the country support Russia. So they are forced, if not to agree, at least to live with a breakaway region of the country. And people who inhabit that region are forced to live with continuing tension, occasional outbreaks of violence, distrust and fear. Other countries like the US, have imposed sanctions or otherwise attempted to influence events, but nobody wants to start World War III over the Ukraine.

It's a good reminder that not all conflicts are resolveable. "Resolution" of a conflict such as exists in Ukraine may be too ambitious a goal for now. What is needed is management of the conflict, to make life somewhat tolerable for the people affected by it. People need to develop a tacit understanding that flare-ups of violence should be avoided. People need to learn what topics to avoid in conversation; what neighbors to avoid; what side of the street to walk on. And people need to start building a few tentative bridges to the other side to prepare for the day when a fuller resolution might be possible.

Sometimes frozen conflict inspires the construction of borders and security fences, as have existed in the Korean peninsula for a lifetime, as in Berlin for a generation, as in Israel for most of its history, as in Cyprus for many years also. In other places the combatants cannot be so easily separated, as in Northern Island, and people just learn to associate with their own side. In most of these situations, the conflict is exacerbated by differences in culture, in religion, in language, in ethnicity, or in ideology, differences that allow each side to view the other side as "them," somehow completely unlike "us."

We have conflicts in our own country's history that have existed since its founding. The most serious conflict, over race relations, was supposedly resolved by a bloody Civil War, but a system of white supremacy was allowed to remain in place for a century after that. This conflict was resolved more completely by the Civil Rights movement, but not entirely then either. Our nation's frozen conflict still flares up today on the streets of New York City or Ferguson, Missouri. We can't just make it disappear.

Yet we still have an urge, when faced with intractable conflicts such as the one between Israelis and Palestinians, or between the East and West of Ukraine, or the one that arises from our own history of slavery and discrimination, to push the parties to the bargaining table to hammer out an agreement that will finally solve the problem once and for all and enable them to live in peace. In many cases, it is probably more realistic instead to accept that the conflict is not going to be resolved in one fell swoop, and help the people affected by it develop just enough tolerance and understanding to get by.

Wednesday, November 26, 2014

Trials, part 2

Here I want to talk about the emotional component of trials: both the agony and the ecstasy involved in this climactic phase of litigation. These emotions are stirred up in part by the incredible amount of work that needs to get done in the days and weeks leading up to trial, days that are consumed with pre-trial briefs and motions, jury instructions, witness and exhibit lists, re-reading the documents, preparing witnesses, etc. Time and cost considerations seem to go out the window. Whenever I am getting ready for trial, I seem unable to think about anything else. I disappear from family and other obligations.

12 Angry Men
It's not only the massive amount of preparation that turns litigants and lawyers into emotional wrecks. There is also the confrontation with the stark reality of the case itself, with all of its strengths and weaknesses, that worries you. It's like facing Judgment Day. Clients start feeling nervous, and at the same time somewhat helpless to control the outcome, like an expectant father. But they might also feel like an expectant mother, because they know this is the moment when they really have to deliver. Both lawyer and client share an awful feeling in the pits of our stomachs that stems from the realization that we are putting everything on the line in the service of our imperfect case, and the knowledge that it may not prove worthy. But we share a sense of excitement as well, because if everything goes well, and we've prepared as well as we can, we could also be on the verge of a great moment of triumph.

I start second-guessing myself before the trial even starts: did I analyze the case properly? Am I going to be able to score the points I am hoping to score? Was this case worth the amount of time and effort we expended on it? Is the jury going to understand the evidence and get the message I want to convey?

All of this emotional turmoil, second-guessing, and the realization of facing the moment of truth leads to a lot of settlements on the courthouse steps. But if the case doesn't settle there, there is still the emotional roller-coaster of the trial itself: the highs of a cross-examination question that hit the mark, the lows of an answer I wasn't expecting. The parts that didn't go over as well as I was hoping. The parts that went over better.

Last week I won a very satisfying jury verdict. So naturally I'm thinking, settlement is for suckers. There is no feeling better than winning. Plus my client deserved to win. But I've also experienced the other outcome, and it is the pit of despair. And then there are those results in between, where the outcome didn't seem to change anything, and made everyone question whether the whole exercise was worth it.

Most people enter into litigation without fully considering the impacts of trial, financially, mentally, morally, emotionally and in every other way. They haven't thought about how they would feel if they won, or how they would feel if they lost. They haven't thought about how they would feel while they were getting ready for trial, and how they would feel in the middle of it. That makes sense, because most cases are never going to get that far. But people are still looking for vindication when they file or respond to a lawsuit. They want to find out who is in the right and who is in the wrong, but they don't necessarily want to experience all the feelings of dread and anticipation that are required to obtain that outcome. The problem is that you can't have one without the other. And people should understand that it's the rare case where matters of principle really demand you to go through all of that agony and ecstasy to obtain the end result you thought you were looking for.

The point I'm making--that litigants should think through the consequences of trial before they embark on that enterprise--might seem to contradict the conclusion of my prior post, which was that we need more trials to help educate lawyers on what is important in litigation and perhaps reduce the amount of waste that takes place in prior proceedings. Here is how I might reconcile those positions: I think our system leaves most litigants feeling unsatisfied. They are especially unsatisfied when they are told to pay more or accept less than they think is fair because justice simply costs too much. Therefore I think we need to reduce the amount of pre-trial proceedings that stand in the way of trial. That way, more people who need the vindication (or the repudiation) of their positions they get from trial, can obtain that kind of satisfaction. Equally importantly, if we can reduce pre-trial proceedings, then more people are going to settle based on their evaluations of the case and their notions of fairness, rather than because they have been ground down by the high cost of litigation. That should increase satisfaction also.

Ideally, our system should allow you to try your case at reasonable cost. It should also encourage you to resolve your case by negotiated agreement, and that should happen to most cases. What the system should do less is to allow you to litigate your case to the point where you are forced to settle because you can't afford to litigate any more.

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.