Monday, May 28, 2012

Rules and Ethics

At a CLE program I attended last week put on by the LA Superior Court and hosted by Pepperdine Law School, two of the panelists, Max Factor and Peter Robinson, got into something of a debate about how to handle an ethical situation. The topic concerned the mediator's responsibilities when the mediator learns that one party to a mediation has slipped a potential land mine into a proposed agreement. Suppose the party inserting such a provision admits their deceitful intent and specifically instructs the mediator not to tell the other side of the land mine's existence. Is the mediator bound to keep that information confidential? Perhaps, but to avoid being a party to a potential fraud, the mediator can at least still suggest that the other side read the draft carefully, and even take it back to the office overnight before signing. The mediator certainly doesn't have to urge the other side to sign such a trick agreement right away, or assure the other side that it is fair.

Doing that might even violate other ethical obligations. Peter Robinson reminded the participants that the first principle in the ABA Model Standards of Conduct for Mediators is self-determination. That principle is defined as "the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome." Mediators are not supposed to undermine that principle of self-determination for any reason, such as increased settlement rates, or pressure from the courts. The rules applicable to court program mediators in Los Angeles County Superior Courts emphasize that their purpose is  
"to inform and protect participants in these mediation programs, and to promote public confidence in the mediation process and the courts. For mediation to be effective, there must be broad public confidence in the integrity and fairness of the process. Mediators in court-connected programs are responsible to the parties, the public, and the courts for conducting themselves in a manner that merits that confidence."
C.R.C. 3.850.  The mediator's obligations in upholding that purpose, include informing the parties of the voluntary nature of the process, and refraining from coercing the parties into continuing to participate. C.R.C. 3.853.

Is there a conflict between rules respecting self-determination and voluntariness, and rules protecting the confidentiality of the process? At the very least, there may be problems in enforcing the rules when the entire mediation proceeding is protected by confidentiality. But that should not give either party, or the mediator, a license to commit fraud or engage in other forms of coercion. Is there a potential conflict between mediators' business interest in promoting high settlement rates and pleasing the attorneys who refer cases to them, and their obligation to the parties to make sure the process is voluntary and fair? Perhaps in the short run. But in the long run, one hopes that mediators' concern for protecting their integrity and reputation would be more valuable.

One concern I have about the future of mediation, as the process becomes more accepted and prevalent, is that we will see a backlash against mediation similar to the backlash we have seen in recent years against arbitration. People were told that arbitration is quick, cheap and fair. When that sometimes turns out not to be the case, parties are rightly upset about giving up rights they would have had in court. That has led to a movement to restrict the use of pre-dispute arbitration clauses.

If more than a very few participants in mediation believe that they were railroaded into a settlement, or that important information was withheld from them during the process, we are going to start to see a backlash against mediation also. And that would lead to the imposition of more rules, and further limitations on confidentiality. The only way to maintain public confidence in the mediation process is to take these standards regarding voluntariness and fairness seriously, and find ways to make sure that mediators adhere to them. 

Thursday, May 17, 2012

Talking to the enemy

I heard an amazing interview on the The World radio program today, with a young American Army commander, Captain Michael Kolton,  who decided to reach out and forge a relationship with one of the Taliban commanders that his unit was fighting in Afghanistan. (transcript here)

Captain Kolton made a deal with his Taliban counterpart, a man known as Massoud. Kolton told Massoud that as long as he called every week, the Americans would not hunt him down. Massoud made sure to call every week, and the two men continued to meet and get to know each other. Pretty soon, Massoud was giving Kolton the best intelligence he had ever received, and both found they had more to talk about than they realized.

What common interests could these two enemies, who were both there for the purpose of killing each other, possibly have? And how would these talks serve the Americans' mission, which was to defeat the Taliban forces?

For one thing, both found that they had some common enemies. The Americans were after some rival insurgent leaders in the area, and Massoud was only too happy to help the enemy of his other enemies track those rivals down. More importantly, both discovered that they identified themselves in a similar way. Both men were in the area to hunt and kill others for a cause. Different causes, to be sure, but the realization that both defined their mission in a similar way helped both discover their common humanity (or perhaps their common lack of humanity).

Kolton began to ask himself, is this man truly evil, or is he fighting for something he believes in, just as I am. Those questions allowed him to feel a certain empathy toward his enemy, instead of viewing him only as the other, as something to be destroyed.

These opposing forces probably have a number of other goals in common. Both may seek an end to conflict. Both may seek political power. And both can probably help the other achieve at least some of those goals by continuing the dialogue. It turns out that the Taliban fighters that the Americans made contact with are now receiving stipends and vocational training from the Afghan government. They do not pose the same threat they once did. Kolton thereby proved the truth of Abraham Lincoln's saying that the best way to destroy an enemy is to make him a friend.

This certainly seems like a new way of fighting, especially as an initiative from an American soldier instead of the usual way that diplomatic efforts come about. We give medals for heroism in war, usually for uncommon bravery in risking one's life to help others in the unit. Perhaps we should also consider medals for peacemaking, to reward initiatives that help the army achieve its goals without needless loss of life.  As Captain Kolton says in this interview, "the new definition of courage is risking yourself to protect innocent people and reconcile fighters. That new definition of courage is slowly changing the culture of my army."

Monday, May 7, 2012


The fourth volume of Robert Caro's biography of Lyndon Johnson is finally out. Covering the period from about 1958-1964, the years of Johnson's vice-presidency and transition to the presidency, this book features the legendary feud between Johnson and Bobby Kennedy.  These two men hated each other from the moment they met, when Bobby Kennedy was a staffer for Senator Joe McCarthy, for whom Johnson had no respect. Matters only went downhill from there. This was a bitter rivalry of Shakespearean dimensions, that had immense consequences for our country's history.

I'm not yet halfway through this thick book, but can already report how fascinating it is to read Caro's reconstruction of the day in the middle of the 1960 Democratic convention when Jack Kennedy offered Johnson the vice-presidential spot on the ticket in the morning, and Bobby Kennedy then spent the whole afternoon trying to take it away. This drama played out between the 7th and 9th floors of the Biltmore Hotel in downtown Los Angeles, which I can see from my office window. It's a great example of how mutual suspicion and distrust can cause tremendous miscommunication and confusion. Bobby Kennedy and Lyndon Johnson demonstrate how people who hate each other almost killed a deal by their insulting behavior toward each other.  How their mutual hatred blinded them to its advantageous possibilities. And how this acrimonious start to Johnson's vice-presidential tenure poisoned his subsequent relationship with the Kennedy brothers.

The story made me wonder if it is ever worth making a deal without working first on improving the relationship between the parties. A lot of the mediations I conduct start off with one or both parties telling me how much they dislike and distrust the party or attorney on the other side. In those cases I might spend the first hour trying to persuade the parties to meet in the same room, which they sometimes never agree to do. And in cases where the parties want nothing more to do with each other, and are just trying to end the lawsuit with a payment from one to the other, it may not be necessary to repair the relationship in order to settle the lawsuit. In fact, one can use the parties' mutual dislike as a reason they should be interested in ending the conflict, and achieving a final separation. Even in those kinds of cases, however, it can still be beneficial for each side to obtain at least a better understanding of where the other side is coming from, which tends to make both sides more satisfied with the result. In other cases, however, some of which I have previously described, that might include a family relationship or a broken business partnership, improving the relationship may be a more important goal than making a deal. If the parties can repair their relationship, they will have a much easier time making an agreement. And the more trust that can be re-established in a relationship, the better the chance that the deal will work.

If we can find a way to improve the relationship of parties enmeshed in the kind of feud that existed between LBJ and RFK, there is almost no limit to what can be accomplished. In Garry Wills's review of this volume of Caro's biography in the New York Review of Books, Wills imagines what might have happened in an alternate reality in which Johnson and Bobby Kennedy, instead of hating each other, had managed to understand and appreciate each other's talents:
To understand the sheer wastefulness of this conflict, try to imagine the impossible. What if the two men, instead of bringing out the worst, had played to the best in each other? Suppose Bobby had recognized his brother’s need of Johnson in 1960, had helped capitalize on his resources in the South, and had made him an effective partner in Jack’s administration, instead of a sullen man isolated in his discontent. Would some of the effective legislation of Johnson’s turn in office have been accomplished earlier? Or suppose that Johnson, open to the alternative insights of Bobby, had seen the force of objections to the Vietnam War before he floundered so deep into that Big Muddy. What if he had won over the young people who ended up chanting outside the White House, “Hey, hey, LBJ/How many kids did you kill today?”
We already know that if Bobby Kennedy had succeeded in talking Johnson off the ticket in 1960, his brother probably never would have become president. Is it also possible that if these two men had not hated each other so much, civil rights might have happened sooner, and Vietnam might not have turned into the disaster it did? Think how many of history's tragedies could have been avoided if the parties involved could have learned to get along better.

That inspires me to think about how every time parties enter into a mediation, they have the opportunity to change history, on a smaller scale, but in the same large way. A bitter and costly conflict might be brought to an end. A trial that could result in disaster for one, or possibly both sides, can be averted. A destructive relationship might be transformed into one that allows for new productive possibilities. Such are the hopes with which we should begin every mediation.

Thursday, May 3, 2012

Learning from history

George Santayana said that those who cannot remember the past are condemned to repeat it. In the business of resolving legal disputes, we encounter parties who remember the past all too well. Each side might remember the past in a somewhat different way, but both sides can give a detailed recitation of every event in the past that created the dispute.

Yet they repeat it anyway.

What I have observed during a long time spent guiding clients through the progress of lawsuits, are the opportunities that lawsuits provide for parties to repeat exactly the same behaviors that created the original conflict. Before they filed suit, parties might have a dispute about performance of a contract, or some claimed wrongful action one or both took against the other. The bitterness and distrust engendered by their original grievances are likely to give the parties a chance to find new ones. The party who complains about his adversaries' failure to perform a contract is also likely to fault their woefully inadequate responses to interrogatories. The party who feels wronged by her opponents' insulting behavior before the lawsuit might be even more offended by the outrageous exaggerations contained in their motion papers. Not only does litigation afford parties a chance to obsess over their original claims, it allows them to create new ones. After some time in litigation, parties can not only recite the sequence of events that brought them to court, they can also list a whole new series of wrongs that occurred during pre-trial proceedings. And they want to pay the perpetrators back in kind. Thus the story of the lawsuit itself comes to resemble the story that brought the parties to court in the first place, because these same personalities can't help acting the way they did before.

We might therefore turn to  Karl Marx for a more apt quotation to describe litigation: "All great historical facts and personages occur twice: the first time as tragedy, the second time as farce." Not all lawsuits end up as farces. Some allow for a cathartic expungement of the original conflict. But many lawsuits degenerate into farce, because they encourage parties who thought they were fighting about something important to fight instead about increasingly petty problems encountered in the course of litigation. It is strange that we think the best way to resolve a conflict is to create even more conflict, until the judge puts an end to it, or the parties get tired of fighting.

Imagine if our justice system could provide parties a real chance to escape from the vicious cycle of conflict, or to consider what mistakes they might have made that helped create the original dispute. Litigants aren't usually eager to conclude that they had anything to do with causing the conflict, however. They are instead likely to blame the judge, or their attorney, or their lying adversary, if things don't go well for them in court. And frequently, they have a point.

As an advocate, I enjoy a good argument over some inconsequential procedural issue as much as the next attorney. But I have an obligation to consider whether the resolution of such an argument is going to do my client any good, especially considering the costs and risks involved in making it. Years of experience have made me more likely to try to avoid fighting over non-substantive issues. I'm also interested in finding simplified procedures to reduce the tendency of litigation to exacerbate rather than resolve conflict. As a mediator, I have even more chance to reduce conflict, by trying to find areas of common interest, instead of looking for new sources of conflict.

(photo from Outlook India)