Saturday, May 21, 2011


Often the judicial system, despite its flaws, is viewed as at least attempting to operate in a just and logical way, according to rules that we understand and agree upon. The hallmark of an informal dispute resolution system, on the other hand, is that it has no rules. It is seen as emotional as opposed to logical, and is also viewed as somehow cheating justice. When we look more closely at the human beings who use and operate the traditional justice system, we might have to question these stereotypes.

I spent most of the past three days in continuing legal education on mediation, including moderating a panel this morning at an SCMA program on employment mediation. At one of the talks I attended on Thursday, sponsored by the federal court ADR program here in Los Angeles, Bill Eddy, a social worker and attorney-mediator, talked about how to deal with what he terms "high conflict people" in mediation. These include people who might be diagnosed by psychiatrists as suffering from various personality disorders, and they represent a fairly high percentage of the population, perhaps about 20%. This information didn't really surprise me, since I grew up with a psychiatrist father. (He thought pretty much everyone has at least a touch of schizophrenia.) These "high conflict" or difficult people probably represent an even higher percentage of people who are involved in various forms of conflict. It seems to me they also represent a fairly high percentage of the people you find in court. There is much about the court system that can feed the unhealthy tendencies of people who might already have paranoid or histrionic or narcissistic traits, or who might just be described as high strung or domineering. What that means is that a lot of the activity of our supposedly rational and enlightened justice system is driven by and performed in the service of a relatively small number of irrational, even somewhat crazy people. I have probably encountered my share of difficult people, both as clients and as adversaries. Every lawyer has.

Another statistic jumped out at me from this lecture. That was that by one estimate (I believe it was by Judge Posner of the Seventh Circuit) perhaps two thirds of all trials, maybe two thirds of all litigation, is driven by people (one side or the other) who have a misconceived notion of the value of their claim. In other words, according to this view, much litigation could be avoided if only the participants had a more accurate understanding of how their case is viewed by the law. This also implies that the courts are not simply acting as arbiters of complicated legal and factual disputes. Most of what they are doing might be described as trying to educate people who do not properly understand the nature and value of their claims.

But the courts are not simply driven by irrational forces. They also employ irrational forces to decide the cases brought by these irrational actors. Judges and juries are supposed to be guided by rules of law and act according to logic and reason, but we know that these human beings also cannot help being guided to a large extent by their emotions in making decisions. When a plaintiff's lawyer says his fender bender case is worth a million dollars, his assessment is likely to be dismissed as being deluded, but even so, his absurdly high valuation has an undeniable effect on judges' and jurors' thinking. (That is a phenomenon known as anchoring.) That means that some of the people who Judge Posner thinks are just clogging up the courts with their misguided views of the value of their claims, instead might to some extent be receiving some vindication from the court system. Courts cannot help but reflect to some extent the thinking of the skewed sample of people who inhabit the world of the courts.

Perhaps a system such as mediation, that more openly acknowledges the role of irrational forces, can do just as good or an even better job of reaching a result that accords with a general sense of justice or fairness, than a system that pretends these irrational forces can be kept at bay.

(photo from English Collective)

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