Saturday, August 31, 2013

Peacemaker/Advocate

The August issue of the California Bar Journal is devoted to the theme of lawyer as peacemaker. In his introduction, State Bar President Patrick Kelly argues that it is time for lawyers to refocus their efforts from advocacy to more of a problem-solving, peacemaking role. The issue includes a number of articles by prominent ADR practitioners helping to illustrate how lawyers can make this transition.

The State Bar President's recognition that it is time for advocates to work to reduce conflict and solve problems rather than exacerbating conflict and causing problems represents a welcome shift. As Kelly states, to the extent attorneys are able to address the need for problem-solving and peacemaking, that can contribute positively to their ability to serve clients' interests in a positive way, and should also improve the public's perception of the profession.

But this position seems at odds with the traditional view of the lawyer as a zealous advocate for their client's interests. Are lawyers supposed to abandon that traditional ethical duty and start making all nicey-nice with their adversaries, giving up their client's legal rights in the interest of peace? To reconcile these approaches lawyers might keep in mind that while clients all want what they think they are entitled to under the law, they also want to resolve their disputes in a reasonable and cost-effective way. Clients are not generally clamoring to perpetuate conflict at enormous cost and risk to themselves, which is what aggressive litigation sometimes entails.

It might also be helpful to keep in mind that litigation does not automatically require that you make no concessions to your adversary, and ADR does not automatically equate with a conciliatory approach. Rather, there is an important place for vigorous advocacy in ADR practice. Lawyers who are trying to resolve their clients' disputes by negotiation should not be giving away the store. They should be trying to obtain a favorable result for their client, just as they do in litigation. The difference is that advocacy in negotiation must influence the opposing party rather than persuade a judge. There is also an important place for peacemaking and problem-solving in litigation. A lawyer who fights at every step of the way in conducting a lawsuit instead of treating the lawsuit as a series of negotiations is only going to antagonize his adversary, increase costs for his own client, and make the case more difficult to resolve.

Lawyers can be vigorous advocates and problem-solving peacemakers at the same time; and regardless of whether they are pursuing conflict resolution in a public forum or a private dispute-resolution mechanism. Keeping the client's real interests in mind at all times--which always includes a range of interests from maximizing recovery or minimizing exposure to resolving a conflict in a reasonable amount of time at a reasonable cost, and sometimes even repairing a damaged relationship with an opponent--helps balance the lawyer's dual roles as both advocate and peacemaker.

Thursday, August 22, 2013

Back to school

Wayne LaPierre owes an apology, or at least an explanation, to Antoinette Tuff, the Georgia school employee who successfully talked down a gunman who entered her elementary school with an assault rifle and some 500 rounds of ammunition. Remember it was NRA spokesman LaPierre who responded to the Newtown shooting by advising us that the only way to stop a bad guy with a gun is to rely on a good guy with a gun. That's right, he said that more guns is the ONLY way to stop violence. Antoinette Tuff instead showed that engaging in an hour-long empathetic dialogue with a dangerous gunman might be an equally effective way to stop a bad guy with a gun. In fact, her method could be a more effective way of preventing violence, as no one was harmed in the incident.

Tuff's interview is a textbook explanation of how to calm down a disturbed individual. You do that by listening carefully to what he was saying, and by telling him, as Tuff explains, that she understood what he was feeling. Then she started sharing some of her own stories, and establishing a personal connection with him by noting that her mother's maiden name was the same as his, and that she remembered his previous visit to the school. Here was a person determined, as he said, to end his life and take many people along with him. Tuff assured the gunman that he did not have to die that day, and that he might have something to live for, and he agreed to surrender peacefully.

Few people would deny that guns have their uses, and most people agree that armed security is appropriate in some situations. What we need to be wary of, however, are people who claim that the only way to respond to violence is with more violence. There are lots of other ways to deal with violence, and many effective means of resolving conflict that do not require force. We need to study those methods. Listening to Antoinette Tuff tell how she did it would be a good place to start.


Wednesday, August 14, 2013

Litigation and homelessness

In an interview published in the LA Times a couple of weeks ago, the new Los Angeles city attorney Mike Feuer was asked about his approach to a well-publicized case in which the city has been enjoined from removing personal property that homeless people leave on public sidewalks. (The case is currently on appeal.) His response:
There are elements of this litigation I see as an opportunity to solve a problem. Litigation is rather a blunt instrument and has yet to get to the underlying issues. The fact that there is litigation means there has been a failure of public policy. It's important to address homelessness in a nuanced way.
I'm committed to striking a balance that enhances conditions for homeless people, protects public safety, assures businesses can operate and improves the quality of life for all our residents. The notice of appeal preserves all our options as we strive to find that balance.
This response is notable first for recognizing that litigation might be a legitimate means of solving a problem, while appreciating its limits for that purpose. Next Feuer shows an interest in identifying the underlying issues that are driving the problem. And finally a commitment to finding a balanced approach to dealing with these issues. All in all, a refreshing and constructive tone for the city's top litigator.

In response to a follow-up question, Feuer went on to describe more specifically how he would approach these underlying interests, a response bound to warm the hearts of mediators:
There's a core legitimacy to everyone's perspective; a zero-sum approach isn't going to cut it. I have in mind bringing stakeholders here for meetings to try to find common ground, getting people who aren't listening carefully to each other to start listening carefully.
Most litigators would be only too pleased to regale an interviewer with lengthy explanations of why the city's position is right and the people who are suing the city are wrong. Indeed, that is what you would expect from the city's attorney. Feuer is instead careful to explain that both sides have a legitimate perspective. He also strikes a new chord by explaining that the solution is not continued litigation, in which one side will win and the other side will lose, but the underlying problems might not get addressed. (Depending on which side "wins," either the sidewalks may be littered with abandoned property, or the prized possessions of homeless people will be swept away.)

Instead, what we need to do is get all the stakeholders--that means homeless advocates, business owners and residents--together to listen to one another in an effort to find common ground to solve the problem in a way that allows the city to keep public spaces safe and useable, while treating people who live in those public spaces with dignity and respect. This is a problem in need of a mediated solution.

LA Times photo

Tuesday, August 13, 2013

Coercion

I recently mediated a case pending in federal court, in which we had a productive session that brought the parties a lot closer to resolution. Both sides had agreed that only the main defendant needed to attend the mediation, as the others lived on the other side of the country and had little willingness or ability to contribute anyway. But at the end of the session, there was still a gap to bridge, and defendants' counsel proposed that he confer with these absent parties to see if they could raise enough additional commitments to close the gap. We left it that counsel would continue settlement discussions between themselves, and call me in if necessary. Both sides left in a positive frame of mind.

Then, in a version of "good cop, bad cop," the court stepped in and scheduled another settlement conference to help push the parties to resolution. I use the term "bad cop" because the court's order was filled with very specific instructions and threats of sanctions. The parties were directed to submit offers and counter-offers at specified dates and times, to appear at the designated time for mediation, to file briefs conforming to very strict guidelines, to make sure that all parties attended and that they had full authority to settle the case. And in case these directives were not followed, the order set forth the exact monetary penalties that would be imposed.

My point is not so much to criticize this approach, even though it is at odds with the voluntary ideal of mediation, because the court's method may also have pushed the case closer to resolution. My point is that courts have a natural tendency to solve problems using the tools of rules, orders and sanctions. That is what courts do. It comes naturally to them. So even when courts hold settlement conferences, they still tend to rely on their customary tools. Sort of like the way Arnold Schwarzenegger dealt with children in the movie "Kindergarten Cop." Effective, maybe, but coming from a mind-set that is fundamentally different from the mediation process. And sometimes that is what the parties want and might even need.

On the other hand, the court's heavy-handed approach might have only created resentment, and still not settle the case. Is that how parties should expect to be treated when they become involved in a lawsuit?

How much coercion is justified to get the job done? What if, for example, courts had a standing order that every time someone files a lawsuit, both sides are fined $1000 per day (make it $10,000 per day in a really big case) until the case is resolved? That would force parties to the bargaining table in a hurry, but would also be antithetical to the business that courts are supposed to be in, of resolving disputes in a just and expeditious manner, according to the law.

Mediators should not need to resort to the tools of coercion. Parties should seek mediation voluntarily, and approach it in the spirit of cooperation and understanding. No one should  be forced to settle. Anyway, the costs and risks of litigation are usually sufficient incentive to drive most cases to settlement. Most of the parties I see involved in litigation are in a great deal of pain, and the lawsuit is usually a kind of private hell for them. Why would I want to add to that pain? Mediators do not  need to impose additional burdens on the parties. Getting people to recognize that they have the power to end their painful conflict is usually sufficient incentive to settle. And courts should think carefully before penalizing people too severely for failing to settle, unless they want to acknowledge that the business they are in is that of punishing people for using their services.