Monday, February 28, 2011

What is mediation?

In talking recently with a friend and fellow attorney about the kinds of mediators most lawyers and litigants are looking for, I realized that most of what passes for mediation these days is not mediation as I would define it, at all. First there is arbitration-style mediation.  You go to a retired judge or similar knowledgeable authority figure. One side presents their case to the mediator.  Then the other side presents their case.  Then the mediator tells you what he thinks the case is worth. The only difference between that style of mediation and arbitration is that the parties are free to take the mediator's opinion or leave it. But they have never really communicated with each other, and they have never explored any issues beyond those that would be admissible in court.

Another prevalent mode is settlement conference-style mediation. In that kind of mediation, the parties, generally in separate rooms, present their offers and demands to the mediator, who dutifully carries them to the other side. The mediator might try to persuade the parties to raise their offers or moderate their demands, and the parties might argue their cases a bit to the mediator, but the mediator's main function seems limited to sparing the parties the trouble of having to negotiate with each other face-to-face. There might be a bit more (indirect) communication in this model, but it would still be unusual to delve into issues beyond those the parties and their lawyers consider relevant to the case. LA mediator Jeff Kichaven circulated an article recently in which he characterized these sorts of mediation as "gray" mediation, meaning that they encourage passivity; they resemble death. He encourages attorneys to take a more active role in serving their clients in mediation, and also to seek out mediators who do more than just messenger the parties' offers and demands back and forth across the hall.

When I expressed to my friend my view that most of what passes for mediation these days does not strike me as the real thing, he asked about cases in which the parties want to have no further relationship, and the only issue is the amount of money the defendant is going to have to pay the plaintiff to settle the case.  Doesn't it make sense to go to an evaluative-type mediator, or a shuttle diplomat, to pressure both sides to reach a settlement in such cases? My response to that: it's never just about the money.  The point of true mediation is to give the litigants a real chance to express their grievances and explore issues they consider important, and to make sure that their concerns are heard by the other side.  If we don't give people that chance to be heard and understood, all we are doing is browbeating them into a settlement to avoid the high cost of litigation, or providing them with a quick and dirty approximation of the full judicial process they started off seeking.  Those methods should not be enough to satisfy most litigants, and they are not likely to result in good and lasting settlements either.

Friday, February 18, 2011

Formalism and Mediation

Justice Scalia is known for his theory of interpreting the Constitution by reference solely to the text in light of the meaning that the drafters supposedly intended at the time they wrote it. In his book A Matter of Interpretation, Scalia has defended his approach as follows:
Of all the criticisms leveled against textualism, the most mindless is that it is formalist. The answer to that is, of course it's formalistic! The rule of law is about form . . . A murderer has been caught with blood on his hands, bending over the body of his victim; a neighbor with a video camera has filmed the crime and the murderer has confessed in writing and on videotape. We nonetheless insist that before the state can punish this miscreant, it must conduct a full-dress criminal trial that results in a verdict of guilty. Is that not formalism? Long live formalism! It is what makes us a government of laws and not of men.
It's interesting that in this passage Justice Scalia chose as an example the most empty kind of formalism: our willingness to provide a defendant with a completely pointless criminal trial, in a case where there is absolutely no question about the defendant's guilt.  In the real world, such a trial would almost never take place.  Criminal defendants who have been caught red handed, and have confessed on videotape pretty much always plead guilty.  So what is Scalia celebrating?   The right of a criminal defendant to ask for a trial that he is almost never going to ask for? Why didn't Justice Scalia give an example where formalism can make a real difference, such as where a formal rule requires that we exclude illegally-seized evidence, even though that might allow a guilty defendant to go free?  Or what about formalism in estate law, where the court might not admit a will because the decedent failed to comply with some formalistic requirements of the will statute, even though we know that will thwart the testator's intent? In the real world, our insistence on legal formalism may have a lot of adverse consequences like that. Formalism can be important to protect people's rights and encourage compliance with the law, but adherence to formalism can also delay or deny substantive justice. None of us, even Justice Scalia, is always going to be satisfied with all of the results that formalism dictates.

One thing Justice Scalia seems to be missing is that the legal system has been steadily moving away from empty formalism of the kind he seems to be encouraging. For example, the adoption of the Federal Rules of Civil Procedure in 1938 could be seen as a rejection of formalism.  Those reforms sought to avoid having cases decided based on restrictive, technical rules that sometimes tossed out meritorious claims.  The Rules' pleading innovations, combined with supposedly open and free exchange of factual information through discovery, were supposed to lead to decisions based on the facts and the law, not on tricks or games. Unfortunately, the rules have evolved to the point where they may no longer be serving their intended purpose. We have allowed discovery to become cumbersome and expensive, and we have erected new barriers to proceeding to the merits, such as enhanced pleading requirements, complicated summary judgment motions, and new grounds for excluding evidence. We have created opportunities for both sides in civil suits to create issues that are expensive and cumbersome to resolve. As a result, we face the danger once again that we never get to the merits. Justice Scalia's comments above may explain in part why the Supreme Court has encouraged this trend back toward formalism, but the Justice doesn't really explain why that is a good thing.

At the same time, however, other rules innovations have continued the trend of openness and informality, by for example, making initial disclosures automatic, requiring the parties to confer on discovery plans and prior to initiating motions, and referring cases to mediation and other forms of alternative dispute resolution that are less encumbered by formal rules.

The point is that these opposing tendencies will probably always be in conflict.  Proponents of informal dispute resolution will probably always be faced with skepticism from those whose world view tends toward formalism, and the proponents of formalism will probably always try to encrust any system we can devise with mechanical requirements that encourage the resolution of disputes by laws rather than by human beings.

Mediators should try to keep the proponents of formalism at bay. We recognize that some rules are needed to govern the process, but whenever we start to create too many obligations and prohibitions on the part of parties or mediators, we just encourage objections and motions and argument and sanctions and adversarial proceedings to determine whether the rules have been violated. That allows in a way of thinking that is antithetical to the spirit of voluntariness, cooperation, openness, and agreement, that is the essence of mediation. Whenever I read about cases in which parties are accused of not negotiating in good faith, or in which parties go back to court to interpret or enforce agreements they believe were reached at a mediation, or in which a mediator is asked to testify or is accused of misconduct, my reaction is that the mediation has failed in its essential purpose of persuading parties to resolve their dispute in a different manner. Mediation works precisely because of a relative absence of formalistic rules, and we have to vigilant against their encroachment.

Just for fun, here's another situation in which rules can get in the way of resolving a dispute:

Wednesday, February 9, 2011

Building a Better Mousetrap

I used to think, back when I was a naive young law clerk, and even into my first few years of practice, that the legal system should provide a clear answer to most legal questions. If you were to read and research carefully any random motion, say for summary judgment, or listen to all the evidence and argument presented in any civil case, the vast majority of the time, the system should provide the same answer to each problem.  Especially for pure questions of law. If we're not all getting the same answer, we probably just haven't analyzed the problem carefully enough.

I still think that predictability is an important ideal, but I no longer think the legal system will almost always provide the same, correct answer to any particular problem. Now I think of the solution to legal problems more as a series of probabilities. So many things can affect the outcome--the way a witness presents himself, the way a motion is written, the way the judge or jury is feeling when they hear a case, and the leeway that the law itself provides to decide a particular question one way or the other. The system seems a lot less predictable to me now than it used to years ago. But even if the system were completely predictable--even if it operated like a well-oiled machine that always generates the same result when the same information is input into it--the answer generated by that machine is not always going to be satisfactory to the people affected by it.

Since we can't always predict the answer the legal system will generate, and since we don't always like the answer even when we can predict it, why not just remove law from the legal system entirely?  I am not seriously suggesting that we do that, so don't panic. But what I have been trying to suggest in some recent posts is that the legal system has become so complicated and so unpredictable, and that is sometimes generates such unpalatable results, that it has already sparked a counter-movement that has attempted to simplify procedures and remove large chunks of law from the legal system. First arbitration held out the promise that parties could design their own rules and procedures, then mediation offered the hope of allowing parties to reach resolution by agreement, so as to avoid the cost, uncertainty, and possibly erroneous outcomes inherent in asking a neutral to impose a solution.

To make clear how different mediation is from court, I sometimes start off by telling mediation participants that there are no rules.  That to me sounds more refreshing than a more conventional opening explanation of the rules (because of course there are a few rules).  By suggesting that we are free from rules, I try to expand the participants' focus beyond the laws and rules that are used to decide cases, so that all aspects of a dispute can be addressed.  That is Mediation 101, the idea that we need to identify parties' interests, not just their legal claims; and that we need to design creative strategies to satisfy those interests to the extent possible, not just adjudicate which side is right and which side is wrong according to some set of abstract principles and rules.

Mediation should do more than serve as a cheap mirror of the litigation process. Sometimes that approach works, but it seems like cheating. A quick and dirty calculation of the value of a case might be all that is required to settle some cases, but does not help us realize the full potential of mediation to address concerns that the legal system does not address, or help us design an even better outcome than an approximation  of the result the court would find.

We should also try to do more than just oversee a structured negotiation process. If all we are doing in mediation is helping people bargain their way from two opposing points to a third point in between, that might make some people question the legitimacy of a system that leaves the outcome to the negotiating skills of the parties, rather than either the merits of their positions, or an assessment of their interests. (Now people who can afford it hire ace trial lawyers to give them better odds of prevailing at trial. As mediation becomes more prevalent, we can expect participants to hire famous negotiators to "win" the negotiation. The system will still carry a taint of illegitimacy, however, if the outcome is perceived as determined by the parties' choice of representative.) To create an alternative structure for dispute resolution that people accept as fair, people should understand that it is not quite the same as what you do when you want to buy a new car or a rug.

What that might mean is creating an alternative way of evaluating the success of any dispute resolution process.  That means we need to look beyond whether the system achieves a result that approximates what the law would dictate. We also need to view the dispute resolution process as more than a simple tug of war between two opposing points of view. Instead, dispute resolution should aim to bring more satisfaction to the parties themselves, as well as any affected observer, than the legal system can provide. That does not require us to jettison our abstract principles of justice, because we still need those to help determine whether we think a result is fair. But we also need to look beyond the solutions that are available in court, and we need to consider matters beyond what a court would consider relevant.

In other words, one goal of a third stage justice system is to free parties from being forced to present their cases in a way best calculated to lead the judge or jury or whomever to decide in their favor based on limited choices of what is relevant or what remedies are available. Instead the parties should be deciding for themselves on the criteria for measuring the success of the process, as well as the information they want each other to consider. The parties should be trying to obtain things from each other beyond the remedies they could obtain in court, rather than just settling for a portion of what they think they would be entitled to in court. Whether mediation can better serve the parties' and society's needs thus depends not only whether mediation is a better mousetrap than court (i.e., cheaper, faster, cleaner), but on whether it can do even more than just catch mice.

(photo of giant Mousetrap game from Johnny Payphone)