Monday, January 31, 2011

Mediation Ethics

Let's say you're the mediator and the plaintiff's attorney makes an initial demand of $20 million in response to which the defendant offers $2.5 million. You turn to the plaintiff and ask how he feels about settling his claims, and he walks out of the conference room, saying "Whatever all of you decide is ok with me."  What do you do?

This was the situation in the second episode of the new series Fairly Legal, which involved the mediation of a civil suit by an exonerated prisoner who was wrongfully imprisoned for more than 20 years. Most mediators in that situation would take the plaintiff at his word, especially since he has an attorney to represent his interests, try to talk the defendant up as high as they would go, and then congratulate the plaintiff on his settlement. On TV, however, the mediator feels obligated to provoke the guy into revealing his true feelings, and in the course of doing so, risks losing the entire settlement offer, almost winds up putting him back in jail, AND gets herself arrested in the process for destroying private property! But it all works out in the end of course, when the mediator presents the parties with a creative proposal she designed herself, that they all for some reason feel compelled to accept. (I doubt the plaintiff's attorney was too happy with the deal, but the show didn't have to worry about that.)


Despite this highly unrealistic scenario, the show does manage to raise some interesting questions about the extent to which a mediator should try to judge the fairness of a negotiated settlement, both in terms of the objective fairness of the deal given the strengths of each party's position, and in terms of the mediator's evaluation of the parties' best interests. Should a mediator ever tell a party to hold out for more, or offer less, than that party seems willing to accept, because the mediator thinks the party can or should try to do better? Should a mediator ever probe behind the party's expressed willingness to accept a proposed deal, to find out if that is what the party really wants? Should a mediator ever try to kill a deal that the mediator for some reason just thinks is wrong for one or both of the parties?  A lot of mediators would probably answer an emphatic "no" to all of these questions, and be quick to condemn the fictional Kate Reed, no matter that she managed to satisfy everyone's interests better than they could figure out for themselves.

I would agree that the answer to these questions should be no in most cases. It is risky for a mediator to second guess parties who appear willing to close a deal. There are almost always very good reasons for settlement, no matter what the terms, because the alternative of continued litigation is often disastrous for at least one, and  perhaps both parties.  And a mediator is usually not in as good a position as one might think to determine the fairness of a settlement.  The mediator is not as familiar with the facts as the parties and counsel, and the parties don't always tell the mediator everything about their case. Given those unknowns, the mediator has to rely on the parties themselves, and their attorneys, to evaluate the fairness of any deal for themselves, and to negotiate for themselves as well as they can.  That doesn't mean the mediator should not coach each party to help them negotiate their deal, or that the mediator should never offer an evaluation if requested. It just means the mediator should be hesitant to second guess the parties who are closest to the case and can in most cases be trusted to know for themselves what they want.

On the other hand, I don't think it is a bad idea to do some probing to make sure that the parties are going to be comfortable with the deal they made, before they commit themselves to it. Mediation can be an exhausting and confusing process especially for people who are new to it. A mediation may be the first time a party has heard a conflicting interpretation of the merits of their position. It may be the first time a party has heard their own attorney express some reservations about their prospects. All that new information may have a disconcerting effect, and may make a party feel they have been steamrolled or tricked into a settlement.  It's good for the mediator to check to make sure that each party truly wants peace, understands the reasons for settlement, and believes that the deal represents a better option than the alternative of continued conflict.  That might risk throwing a small monkey wrench into the process every so often, but it also makes it more likely that people are going to be satisfied with it in the end.


Friday, January 28, 2011

"Frivolous" Lawsuits

Vickie Pynchon has a fun post up on the Forbes website about Dennis Kucinich's suit against the Congressional cafeteria for breaking a tooth on an errant olive pit found in his sandwich.  Her post got me thinking about how mediation deals with so-called "frivolous" lawsuits.  To start with, I represent enough plaintiffs to have a bit of a problem with the term "frivolous lawsuit."  If a case is obviously frivolous on its face, any judge would immediately see that, and would dismiss the case.  So an obviously frivolous case shouldn't cause enough problems to be worth complaining about.  By definition, then, the kinds of frivolous lawsuits that people complain about are those that have enough potential merit to survive a motion to dismiss, and perhaps embroil the defendant in some discovery, and maybe even force the defendant to have to prepare for trial.  In fact, some so-called "frivolous" lawsuits have resulted in substantial jury verdicts in favor of the plaintiff, which means the people who actually heard and decided the cases didn't think they were so frivolous after all.

As Vickie points out, plaintiffs' contingent fee lawyers do not jump at the chance to file frivolous lawsuits.  They invest a lot of time, and some money, in the cases they file, and they have no reason to take a case that does not have at least a decent chance of recouping that investment.  If Dennis Kucinich asked me to take his olive pit case, I would not automatically dismiss it, but would at least ask a few questions before I decided whether or not I was interested.  Just how careful is this kitchen?  Did they have any notice of similar problems?  How did they describe this sandwich?  How much pain and expense did you go through to fix your tooth?  Without more information, we can't make a definitive judgment about it.  And we shouldn't be too quick to mock it until we know all the facts.  People might not be so glib about the way they hold up the famous McDonald's coffee-spilling case as the epitome of a frivolous lawsuit, if they tried to imagine the suffering they would experience by receiving third degree burns on their genitalia, or knew that McDonald's had received numerous complaints about the excessive temperatures at which they kept their coffee. 

Still, even if we recognize that so-called "frivolous" lawsuits may have more merit than they are credited with, experienced trial lawyers and mediators have also seen plenty of cases that cost the plaintiff and his or her attorney way more in time, money and heartache than they can possibly recover if they take the case all the way to trial.  And that's why Vickie's description that she says she sometimes uses in mediation--asking the parties to imagine all the possible grievances, large and small, that all the people in the world experience, and then asking them also to recognize that the vast majority of those grievances do not give rise to legal claims--is a great way of putting many problems in perspective.  I had a plaintiff in my office recently, with whom I pleaded to understand, that his grievance against his [employer][landlord][customer][partner][you choose] was just not the kind of claim that was likely to result in a decent payday for him at trial.  And his lawyer fully agreed with me.  Much better to put it behind you, I suggested, for whatever amount we can persuade the defendant to pay.

So this is how mediation can solve the problem of frivolous lawsuits.  We help educate plaintiffs on the real costs and risks of continued litigation, and we also help educate defendants on the realities that cases they believe lack merit are not always seen that way by a jury, and that it sometimes takes a lot of effort to persuade the fact finder that the case lacks merit.  Mediators can play an important role in reducing the burdens on the courts and the parties of handling many cases that are not worth litigating.

On the other hand, we mediators talk out of both sides of our mouth on this issue.  Because in addition to helping persuade people to suck it up and stop wasting their time on cases that are not worth litigating, we also believe in taking the time to understand some troublesome problems even though we know they would never be allowed in the front door of the courthouse.  Mediation has huge, mostly unrealized potential, to help people solve family disputes and business disputes and many other kinds of disputes, that present real problems, and can cost families or businesses huge amounts of money, but might not give rise to a cognizable legal claim.  To solve those real problems, and also to solve the real problems that wind up in court, whether or not they involve valid legal claims, we need to use the skills of listening, empathy, and creative problem-solving. 

My goals in mediation include peace, justice,and perhaps reconciliation, in addition to efficiency.  If I can achieve those goals by persuading a party that a case is not worth pursuing in court, I will do it.  But if I can only achieve those goals by paying close attention to someone's description of a conflict to which no judge would give the time of day, and helping the parties design a solution to that problem, I will do that.  Thus mediation can open up a new dispute resolution process for conflicts that parties are not allowed to bring to court, while at the same time it can eliminate some of the court cases that have trouble justifying their existence.

(photo from Business Insider)

UPDATE (1/30/11):  Kucinich has reportedly settled his suit for the cost of his out-of-pocket expenses (apparently extensive dental surgery bills that were not covered by insurance).  That raises a couple of possibilities.  Perhaps Kucinich backed down due to adverse publicity.  Or perhaps he was never after a big settlement or judgment in the first place, but felt compelled to sue because the cafeteria's carrier would not honor the claim until they saw he was serious enough to sue.  Either way, this outcome reinforces the idea that it is best not to jump to conclusions about the value of a claim until we know the facts.

Friday, January 21, 2011

Fairly Legal

Some mediators I was meeting with this morning expressed trepidation about the new TV series Fairly Legal.  (See my prior post on the announcement of this series over a year ago.)  We were all curious to see it, but worried about such questions as whether mediators in real life can live up to the glamorous image of a TV mediator.  We also wondered whether the show will give people the wrong idea about mediation.  And the question I found most interesting, how will a show about mediation--which aims to reduce and resolve conflict--be able to show the conflict and drama so necessary for television?  Having just watched the premiere, I came away fairly impressed with the way the show dealt with these potential problems.  Not that any mediator's life could be as hectic and incident-filled as was shown on the show.  Not that the mediation scenes were particularly realistic.  (The closest thing to a real mediation that was shown, strangely enough, was a scene near the beginning where Kate "settles" a robbery, preventing serious injury to both the store owner and the bad guy, by persuading the owner and the robber to agree to allow the robber to take a few items from the store.)  But I was pleased to see that the show made a genuine effort to convey some of the ideas behind mediation, such as the concept of "win-win."   And despite its lapses in plausibility, and the tendency to resolve each situation with the kinds of tricks and gimmicks that are so common on TV lawyer shows, the show may still serve a useful purpose by introducing a broad audience to the whole idea of mediation, which is still new and unfamiliar to many.

And the dramatic conflict?  Interestingly, the central dramatic conflict seems to lie in the tension between the requirements of the law and the needs of the people involved in the situations the heroine is called upon to solve, a problem I just wrote about last week.  I actually thought the writers did a pretty good job of depicting that conflict, using Kate's dear departed father and her evil stepmother to symbolize the traditional view of the law, and Kate's rebellious nature to symbolize a newer approach.  They also show that a mediated solution to problems can provide a better path and perhaps a better result than the results that might be dictated by the legal system.   That means the creators of this show do understand something important about mediation: that it represents a shift from a rules and rights-based approach to the law, to an interest-based approach, and that the clash of these different paradigms presents an opportunity for entertaining drama.
.

Tuesday, January 18, 2011

Confidentiality Update

Last week the California Supreme Court decided the Cassel case, reversing a decision of the Court of Appeal which had carved out an exception to mediation confidentiality.  The exception applied to certain communications between a party participating in a mediation and his own attorney, which the party subsequently sought to use in support of a malpractice claim against that attorney.  In a previous post on this topic, I argued that while questionable as statutory interpretation, such an exception should not unduly threaten the general principle of mediation confidentiality.  The Supreme Court's opinion states that it understood the policy concerns that arise from shielding evidence of potential malpractice claims from scrutiny.  Nevertheless, the Court held that the plain language of the confidentiality statute (California Evidence Code Section 1119), compelled the Court to hold that evidence of the alleged attorney-client communications that formed the basis for plaintiff's malpractice claim should be excluded.  Any exceptions to the broad protection of confidentiality afforded in California are therefore the Legislature's responsibility.  (Justice Chin's concurring opinion strongly suggests that the Legislature should revisit this issue.)

I have heard some mediators express concern with prior appellate rulings on this topic, wondering whether mediators should warn parties and attorneys that there might be exceptions to mediation confidentiality.  There might be concerns in the other direction also, now that the courts have re-affirmed a very broad protection for statements made in the course of mediation.  Should we warn parties to a mediation that they most likely have no recourse against not only the mediator, but also their own attorneys, if they believe they receive improper legal advice during a mediation?  I don't plan to issue any such specific warnings, but I probably will broaden my explanation of the scope of confidentiality in mediation to make clear to the parties that anything that occurs in the course of a mediation most likely may not be used in court for any purpose, whether in the pending case or any related case.  

What should cause some concern are the allegations in the Cassel case.  Granted that these are only unproven allegations, and that the attorneys in that case no doubt would have sought to prove that their conduct was entirely appropriate, these allegations illustrate a hypothetical situation that parties, mediators, and attorneys should probably take some steps to guard against.  Cassel contended that he was tired, hungry and ill after 14 hours of mediation.  He claimed that he felt pressured, even "hammered" to settle the case.  He claimed that his attorneys threatened to abandon him before trial, falsely offered to discount their fees if he would accept a settlement, and falsely assured him that he would be able to negotiate a side deal that would enable him to recoup some of the losses he was waiving.  Exhausted and seeing no alternative, he claimed that he finally signed the settlement agreement at midnight without a full understanding of its complicated terms.

Mediators know that it is sometimes not possible to obtain a settlement unless the parties are pushed beyond the bounds of a normal working day.  Mediators generally believe it is worth it to continue the process even when the parties are tired and may not be thinking clearly, because the benefits of settlement in most cases outweigh the costs of continued litigation.  In most cases, parties appreciate those benefits, and often understand that the grueling process that is sometimes necessary was worth it.  They know they might not have been able to obtain resolution without engaging in that difficult and perhaps cathartic process.  On the other hand, there are cases of genuine buyer's remorse, and there are cases in which parties have felt pressured into accepting a deal.  When parties are pushed to the point of exhaustion, the mediator, and the parties' attorneys, should take the time to make sure that any resulting agreement was entered into with full understanding of the consequences.   Not just because the Legislature might open up the doors to malpractice actions if enough parties are dissatisfied with what can happen in mediation, but because one of the main goals of mediation should be to help the parties achieve satisfaction with the result.

(Life photo)

Tuesday, January 11, 2011

Language and Politics

Each time we are forced to deal with another attempted or successful political assassination or other violent act, we react in a slightly different way, depending on the political concerns of the moment.  Some past incidents have sparked calls for stricter gun controls.  Sometimes we have heard cries for more law and order.  You used to hear people blame overly permissive child-rearing practices for violent or disruptive behavior.  Sometimes violence has been explained as the result of injustice or prejudice in society.  This time, in the wake of the attempted Giffords assassination, we have heard a lot of talk identifying the high level of violent rhetoric among politicians and the media as a source of the problem.

Attempts to draw a connection between inflamed political rhetoric and this particular violent act started almost immediately.  I'll admit I was pretty quick myself to draw what seems like an obvious connection between a heated political campaign featuring Congressional districts depicted with cross-hairs, and an individual actually targeting a Congresswoman with a gun.  The County Sheriff also identified the highly charged political climate in Arizona as a source of the problem.  More chillingly, the intended victim herself gave an interview last year, after her offices were vandalized, warning of the consequences of violent political rhetoric.  Given the nastiness of the recent campaign season, it seems only natural to attach some blame to those who have fanned the flames of hate, and seemed to encourage violence.

In response to all of this discussion about our poisonous political atmosphere, it is not surprising that a counter-reaction has already started.  Talk radio hosts and pundits from the right condemn the left for attempting to use this incident to score their own political points.  Instead of owning up to right wing campaign rhetoric that seems to encourage the violent overthrow of the government, they are making the weak suggestion that it's all ok because the left sometimes does it too.  They suggest that we should focus on the shooter's own personal responsibility, rather than blaming those leaders who have fomented fear and hate, and that there may not be much we can do, other than perhaps beefing up security, to guard against the actions of a few deranged individuals who will always be present among us. 

It may be beside the point even to try to find out whether this particular suspect was driven to act out a political hate crime by political hate talk.  It may even be impossible to determine for certain what part charged political rhetoric may have played in any particular killer's motivations, just as research never seems to provide a conclusive answer to speculation  about whether violent video games, or pornography, inspire violent actions.   The suspect listed on his MySpace page among his favorite books the Communist Manifesto, Mein Kampf, and Peter Pan.  Should we therefore blame Marx, or Hitler, or J. M. Barrie, for inspiring his alleged violent actions?  It also seems contrary to the effort of drawing useful lessons from this tragedy, to try to use it to score political points, from the left or the right.

But I still think that we should be concerned about excessively inflammatory political speech, regardless of whether or not this particular incident was inspired by violent political speech.  In fact, I would suggest broadening that concern.  It's not just whether politicians or talk radio hosts sometimes use violent metaphors to describe political conflict.  The real problem is that we constantly view the whole political system as a fight or a sport, and we tend to demonize our political opponents, instead of trying to understand their concerns.  The main reason I started a political blog a couple of years ago was to address the issue of whether the Obama campaign represented a genuine opportunity to transform our political culture.  And one reason I have been developing a mediation practice is to further my interest in transforming our adversarial legal culture into a more facilitative, interest-based system.  So I have no hesitation in jumping on to this particular bandwagon.

It's some consolation to see that it is suddenly fashionable this week to talk about toning down overheated political rhetoric. The more difficult question is how to do it.  Those who have studied the issue can tell us that changing the nature of our political discourse is a more involved process than just removing overt references to weapons and fights from our speech.  Ken Cloke is a California mediator who has been thinking about these issues longer than I have.  In his book Conflict Revolution, he includes a section on mediating political speech.  Here is how Cloke defines the problem:
The fundamental orientation of politics to power and rights, as opposed to interests, automatically reinforces the assumption that there is a single truth or correct outcome and, more bizarrely, that it is morally acceptable to lie in pursuit of it.  This leads directly to verbal chicanery, character assassination, prejudicial statements, demagoguery, and a pursuit of victory at any price.
I might add that our focus on power and rights, as opposed to interests; our belief that our side is in sole possession of the truth; and our tendency to demonize the opposition, can also lead to violence in language or action.

Cloke proceeds to give many specific examples of questions that can be raised among people of differing political viewpoints to drive political disputes away from unproductive debate to a genuine attempt to find common ground and satisfy divergent interests.  For example, Cloke suggests that we might try asking whether people believe that their communications have been effective in improving understanding in the other side, and what they might do to improve communication.  Or ask people what they have learned from, or appreciate about the other side.  Or how the parties' relationship could be improved.   Then we need to transform political debates into dialogues, in which people are asked to identify what causes them to feel so passionately about particular issues, to search for values and interests they may have in common with the other side, to explore whether any part of the other side's ideas could be incorporated into their ideas, and a whole list of other topics.

As Cloke explains:
The purpose of these questions is not to eliminate or discourage disagreements, but to place them in a context of common humanity and allow genuine disagreements to surface and be discussed in depth.  These questions reveal that political conversations need not be pointlessly adversarial, but can be transformed into authentic engagements by allowing opposing sides to come to grips with difficult, complex, divisive issues without being hostile or abusive. 
(Cloke, Conflict Revolution, pp. 103-08)  Can we learn to transform our political dialogues in this manner?

(Reuters photo)

Monday, January 10, 2011

Next Stage Justice

In The Eumenides, Athena abolished the revenge cycle because that ancient justice system contained fundamental flaws that made it unsuitable for an enlightened democratic state.  Revenge does not achieve finality; it perpetuates violence; and it is mechanical and deterministic, thus denying free will.  In its place, Athena set up a new system that was supposed to be based on wisdom, truth, and rationality.  It continues to serve us well in many cases, but after more than 2000 years of our experiment with this more enlightened justice system, it might be time to ask whether it has finally has outlived its usefulness.  At the very least, we can probably all agree that our system of justice could stand some improvements.

We can identify several fundamental flaws in our system.  First, it embodies an inherent contradiction that has existed from the time of its imagined invention by Athena in The Eumenides.  That contradiction lies in the jury's unreviewable authority to acquit the accused, while at the same time being bound by their oath to follow the law.  It was recently reported, for example, that prosecutors are finding it more difficult to get convictions at trial in minor marijuana cases, because many jurors simply will not convict for these offenses.  Jurors in civil cases also have substantial power to reach the result they deem appropriate, regardless of the instructions they are bound to follow.  It is probably good that jurors have this power, because it can temper the law's harshness in particular cases, but it means that we cannot claim to be governed solely by the rule of law: we are sometimes governed by the whims of individuals who sit in the jury box. The leeway that juries--and judges--have to interpret the law and the facts also makes results difficult to predict.

Second, our adversarial model of justice still resembles a form of combat.  Victory will sometimes go to the team that plays the better game, not necessarily the side that is most in the right.  Therefore, like the revenge cycle, modern trials still do not always achieve finality, or satisfy the parties or society with the fairness of their  results. 

Finally, our system has become cumbersome, time-consuming and expensive.  As procedures have evolved to protect the fairness of the process and the rights of the parties, these procedures give rise to delays and potential abuse.  As a practical matter, most people simply don't have the time or the money to litigate most disputes, and need an alternative.

The rise of ADR can be seen as a sign of people's frustrations with a formalistic, rule-bound system.  The search for alternatives can partly be explained by the desire to avoid the enormous costs and time commitments of formal litigation, but there is more going on than that.  We are also trying to satisfy needs that have never been perfectly addressed by the legal system:  for one, the need of parties to design their own solutions to conflicts, instead of having solutions imposed on them by a higher authority. In the legal system of the future, will we sweep away even more completely the formalism of a deterministic process?   Will we provide an opportunity for anyone who has a dispute to resolve that dispute, apart from whether legal rules may or may not provide a possible answer?  In other words, can we devise a justice system that resolves any real conflict regardless of whether a party has a "case" that can be brought in court?  Mediation may offer the promise of filling in these gaps in our justice system.

Mediation brings back some of the do-it-yourself aspects of the legal system that Athena abolished in The Eumenides.  Unlike the ancient revenge system based on divine compulsion, however, the modern movement for do-it-yourself justice seeks to satisfy the self-directed interests of both parties.  Revenge solves a problem for one side by killing the other; then it creates a new problem for the killer.  The second stage justice system designed by Athena replaces vengeance with the ability to reason with fellow citizens to impose a solution on the parties that can put controversy to rest.  But that system limits the arguments one can make to those the law allows or that a jury might accept.  It does not always take heed of arguments and interests and concerns  that might help the parties themselves to reconcile.  And it denies parties the power to design a solution for themselves, instead requiring them to accept the judgment of the court.  A third stage justice system  would aim to resolve disputes by agreement in a manner that both parties themselves find fair.  To do that, it might still rely on legal norms that the parties find persuasive, but would not be limited to deciding cases based on those rules (as even the existing jury system is not so limited).  It adds the ability to consider interests and needs and mutual advantage, in addition to time-honored principles that both sides accept as valid.  I should note that I'm not suggesting that our entire legal system should be scrapped, and replaced with mediation or some other form of ADR.  I don't expect, or even want, litigation and trials to go away anytime soon.  What I'm saying is that our system is evolving into something new, a system that may incorporate additional values into the formalistic, rules and rights-based process that still dominates today.

Someone might need to pen a modern Oresteia that reveals the shortcomings of our current system of justice, and leads the parties toward the promise of a better system that encompasses a broader range of conflict, and resolves or manages conflict in a more harmonious way for the parties and society at large.  Will we evolve to a point where our current justice system seems as barbaric as the ancient revenge cycle seemed to the Athenians in Aeschylus's time?  It's exciting to think that we might be at such a stage in history.

Tuesday, January 4, 2011

Absolution

In The Eumenides, the final play of Aeschylus's trilogy (see my two prior posts on the first two plays), Orestes has flown to Apollo's temple, pursued by the hideous, disgusting Furies.  While they are sleeping, Apollo appears and tells Orestes to go to Athens and beg Athena for help (again from the Ted Hughes translation):
There you shall be judged
By men that I have appointed.
And there, inspiring the tongue,
I will free you.
I commanded you to murder your mother.
Now I shall draw, as in a lottery,
From all your tossed-up days and nights,
Deliverance from the crime.
Orestes follows Apollo's directions, and gets the chance to present his case to Athena, who immediately recognizes its complexity.
This case is too deep for a man.
Nor should I let the law, like an axe,
Fall mechanically on a murderer.
Especially since you came to my temple.
As a supplicant
Fully cleansed of your crime.
But your accusers have to be heard.
And if their case fails--what happens to their anger?
It whirls up into the air, it blackens heaven,
It falls like a plague on Athens.
Falls as a curse on Athens.
How am I to deal with the dilemma?
Let me select a jury of the wisest
Among the citizens of this city.
Let them be the first of a permanent court
Passing judgment on murder.
They shall be sworn in
To integrity and truth.
They shall have the full use of my wisdom.
The Furies are skeptical of this proposal, fearing that "soft-headed" juries who exculpate criminals will only give license to murderers.  They see Athena's plan as a threat to the divinity of Justice.  But Athena is determined, returning with twelve citizens "to establish justice now, and throughout all time to come."  Apollo appoints himself defense counsel, and the Furies serve as the prosecution.  Athena grants the Furies the right to present their case first.  Apollo argues the case for Orestes, and when he is done, says that he will abide by the jury's verdict.  The Furies, however, warn that the jury better remember their oath, and "the primal laws of the earth."  While the jury is deliberating, the Furies tell Apollo that they will not accept an adverse verdict as legitimate, and will curse the land and city if they lose.  (Think of the riots that occurred after the jury acquitted the police officers in the first Rodney King trial; or the outcry after O.J. Simpson was acquitted in his first trial.  Aeschylus reminds us that these criticisms of the jury system began from the moment of its inception.)

When the jury comes back evenly divided, Athena casts the deciding vote for Orestes, for reasons that seem to reflect her own prejudices, but nevertheless put a divine stamp on the outcome.  She must then calm the Furies, who think the old laws have been crushed:
Can we be shut away inside the earth,
Voiceless and nameless
Under a temple paved with words,
Under columns of reasonable persuasion?
Athena reassures the Furies that they will not be forgotten, but instead will be transformed into kindly creatures.
The time of brute force
Is past.
The day of reasoned persuasion
With its long vision,
With its mercy, its forgiveness,
Has arrived.
The word hurled in anger shall be caught
In a net of gentle words.
The angry mouth shall be given a full hearing.
I understand your fury.
But the vendetta cannot end,
The bloody weapon cannot be set aside
Till all understand it.
Athena promises that this new system of justice will serve as the foundation of great fortune for Athens, as she leads the former Furies, who go willingly to their new home, a cave under the city.



One could view Athena as a kind of divine law-giver, passing down to the mortals the rules they need to govern their lives.  But she is a much different kind of law-giver than the Old Testament God who passes the Commandments to Moses.  She hands out procedural rules, not substantive commands.  And she takes pains to make sure that the parties in conflict--Orestes (and his attorney Apollo) on the one hand, and the Furies on the other--agree on the fairness of the procedure, and accept the result.  She empowers the jury to absolve Orestes, for whatever reasons they may see fit to employ, and she transforms the Furies.  In all these ways, Athena functions more like a mediator than a judge, even though she does cast the deciding vote.  What is revolutionary in The Eumenides is the system of law Athena bequeaths: the source of the law is now a jury of wise citizens, not a god or king, which is fitting for a democracy; and the tools of the law are reason and persuasion, not ancient rules of retribution.

How well has Athena's new system of justice held up over the ensuing 2500 years?  How fully has it transformed the previous system?   Have we yet grasped the power of wisdom and kindness, or are we still mired in deterministic law based on force and revenge?  Are we now at a point where we need another transformation of the court and jury system in favor of an even more inclusive, just and harmonious process?  The rise of the ADR movement, as well as contemporary complaints that our court system is too complicated and expensive, and that it often fails to provide needed finality and peace, suggest that many are looking for an alternative to this long-standing system of justice. Would a modern Oresteia help us find it?

(illustration from maicar.com)