Tuesday, December 30, 2014

Plea bargaining

In an exchange of letters published in the most recent issue of the New York Review of Books, commenting on an article last month about reforming the plea bargaining process by Federal District Judge Jed Rakoff in New York, Judge Rakoff defends his proposal to get judges more involved in plea bargaining by comparing it to the way mediation is offered to civil litigants in the same court. Here is how he describes mediation as he sees it being practiced: 
[C]ivil litigants regularly meet with magistrate judges or court-appointed mediators shortly after a case is filed and, in separate, confidential presentations to the mediator, describe their respective evidence and positions. The mediator then meets again with the parties separately and, based on what the mediator now knows about the underlying factual and legal positions, points out to the respective parties the pitfalls they each face.
As every mediator will tell you, it is not that the parties have been wholly unaware of these pitfalls in the past that makes mediation effective, but rather that the parties have never taken these shortcomings seriously because they were never previously described with the forcefulness and objectivity that a mediator brings. Duly shaken, the parties are now open to a settlement proposal from the mediator that they would have previously rejected out of hand.
I'm sure this is the way mediation is often conducted in federal court, particularly when judges preside as mediators. But it's not the way all mediators practice. Some purists would probably even argue that this style of mediation--which generally takes the form of a back and forth discussion with each side predominantly in caucus format, in which the discussion primarily revolves around the parties' "respective evidence and positions," in which lawyers tend to dominate the conversation, and which concludes with "a settlement proposal from the mediator"--is not mediation at all. It's a settlement conference. It achieves its intended result by presenting the parties with a neutral assessment of how the case might come out at trial. Its content seems to be based almost entirely on consideration of legal rules and rights, rather than any attempt to discover the parties' needs and interests. And not "every mediator" will tell you that cases are settled in mediation as a result of the parties being "duly shaken" by the mediator's power to describe the issues forcefully and objectively. Often cases are settled in mediation because it's the first time the parties ever had a chance to listen to the other side, and because they now more fully understand their perspective.

Anyone who's ever read my blog before, or perused the literature on mediation, knows that a discussion limited to the strengths and weaknesses of each side's respective legal and factual positions at trial merely scratches the surface of what can be accomplished in mediation. I sometimes remind parties in mediation that they need not be concerned at all with what might happen to the case in some alternate universe in which it goes to trial. After all, the case is most likely not going to trial, and therefore it can be resolved based on whatever concerns are important to the parties. At times in his earlier article, Judge Rakoff seems to recognize this reality, noting that hardly any criminal cases go to trial, and nearly all are resolved by plea bargaining. That would seem to open the door to consideration of a range of factors that  are not even relevant at trial, yet might prove a more satisfying form of resolution for the parties.

In the mediation of civil disputes, a lot of mediators reach far beyond the narrow focus on evidence and positions that Judge Rakoff is talking about. Parties have a chance to air their real grievances, for example, regardless of whether they might constitute a cognizable legal claim. They have a chance to uncover their real motivations, which might take the form of betrayal, jealousy, anger, resentment, disrespect, misunderstanding, or just plain inconsiderateness. And they have the chance to design solutions to the conflict that are simply beyond the reach and power of a court to impose.

It could be that because Judge Rakoff expresses too limited a view of the possibilities of civil mediation, he is also ignoring the possibilities of more meaningful reform of the criminal justice system. In the resolution of criminal cases, is the most promising road to reform really getting judges more involved in plea bargaining? Instead, we might try to incorporate some of the values and methods of the restorative justice movement. A full discussion of that topic is beyond my expertise, since I operate only in the civil justice system. I do know, however, that that model operates more closely to the ideal sort of civil mediation described above, than to the limited idea of civil mediation contemplated by Judge Rakoff. To bring the process of plea bargaining closer to that ideal, the parties to a criminal case should also be permitted to consider a range of interests beyond those meted out by criminal trials. The accused and the victim may, for example, be able to obtain restitution, forgiveness and understanding, rather than relying solely on punishment. Introduction of those concerns might be what is needed to bring plea bargaining out of the shadows and into the realm of respectability, and even enlightenment.

Saturday, December 13, 2014

Joint sessions redux

Joint sessions have suddenly shown up as a hot topic again. The fall issue of the ABA Dispute Resolution magazine features an article by Eric Galton and Tracy Allen alarmingly called "Don't Torch the Joint Session," which decries the "disturbing trend" of eliminating the joint session from mediation. LA mediator Lynne Bassis has an article in the same issue entitled "Face-to-face Sessions Fade Away." And New Zealand mediator Geoff Sharp on the Kluwer Mediation Blog has written a piece with the strange title "The Californication of Mediation," which identifies this disturbing trend as emanating from my home base, the well-developed mediation market of Southern California. Eric Galton has even formed a facebook group called "Save the Mediation Joint Session and Promote Party Participation."

What's going on here? Are joint sessions dying? Do we need to create a movement to "save" them? As a proponent of joint sessions myself, I support efforts to increase their use, and to educate attorneys and parties on the benefits of joint sessions. I agree that for some time now, the trend has been toward more reliance on caucus-style mediation. This trend feeds on itself: as caucus mediation becomes the norm, part of the very culture, parties and attorneys expect to remain in separate rooms throughout the process, and even refuse to try joint sessions. Concerted efforts will probably be needed to reverse this trend.

In my own mediations. attorneys frequently tell me that  joint sessions are a waste of time, or that joint sessions allow lawyers to grandstand, or that joint sessions will just inflame the parties and set back their efforts at resolving the dispute. Parties also often express reluctance at meeting with the other side, with whom they have usually had little or no contact since the dispute arose. I suspect these feelings arise from experiences with joint sessions that are not being conducted properly, i.e., that to the extent mediators are allowing joint sessions, they are doing them wrong. I think these attitudes about joint sessions also arise from ignorance or laziness or fear or distrust.

Because I encounter these objections frequently, I find myself in my own mediation sessions attempting to sell attorneys and parties on the benefits of joint sessions. It's going to be more efficient, I might say. Rather than listen to me repeating what the other side is telling me, why not hear it directly from the horse's mouth? Or I might try to explain to the parties that we will set some ground rules that will prevent the joint session from turning into an opportunity for grandstanding. What we're going to do instead is share information, and allow the parties to have the chance to listen and find out what's really bothering the people on the other side of the table, and to tell them what is bothering you. Face-to-face communication has a lot of advantages over shuttle diplomacy.

As is explained in the articles cited above, mediators should understand that face-to-face communication, conducted properly and with guided party participation, performs a crucial function in the mediation process. It should be the norm, not the exception. This kind of communication is what allows parties to understand the conflict from the other side's point of view, and to find out what is most important to them, which is what opens the door for breakthroughs. And these face-to-face encounters can also allow parties to achieve genuine satisfaction and healing, rather than settling for just settling out of necessity to avoid an even more unpleasant litigation process.

It's still an uphill battle in many cases, however, to persuade mediation participants of the benefits of joint sessions, so I agree with these authors that we should do more to resist the slide of mediation into a caucus-only model, and to help consumers of mediation appreciate the benefits of joint sessions.

Thursday, December 11, 2014

The Grand Bargain

The city of Detroit emerged from bankruptcy yesterday, a process that was successful because of something the participants labeled the "Grand Bargain." The Grand Bargain is a complicated plan, but its key feature involves the transfer of the city's extremely valuable art collection to a charitable trust, in exchange for about $800 million in new financing provided by the state and private parties. It sounds like a clever solution to a difficult problem.

What jumped out at me from this morning's LA Times article, was this comment from bankruptcy professor Laura Bartell describing how the parties managed to hammer out the deal: “When everyone realized the situation, there wasn’t a lot to argue about.” Really? Nothing to argue about? From what I had heard about the situation leading up to the Detroit bankruptcy, there should have been a lot to argue about. Depending on your point of view, you could point the finger at a profligate city administration, or poor planning, or at greedy unions, or the state for treating the city unfairly, or the surrounding suburbs that pulled taxpayers out of the city, or the decline of auto manufacturing and other industries. All of these various stakeholders had legitimate grievances against the others. All represented competing interests that had to be balanced.

To resolve the city's financial crisis, one can imagine representatives of all these competing interests gathered in a room blaming one another for the city's problems, and ultimately forcing all of the parties to make the concessions and contributions necessary to get the city back on its feet. Probably that happened to some extent. But the professor's comment suggests that something else happened also. And that something else could have arisen from an understanding gained by all of the participants of the realities of the situation, and a focus on available solutions.

To say that when everyone fully understands the situation, there isn't a lot to argue about, seems an apt description of an ideal kind of mediation or negotiation process. Arguing about responsibility for the problem, while often unavoidable, doesn't necessarily lead to resolution, and might even lead the parties away from making a deal. It's no good to identify the responsible party, if that party lacks the capacity to fix the problem. That's especially true in bankruptcy court, where people who mismanage their businesses, and fail to pay their debts still often walk away free. What is needed is recognition of the realities of the problem, and the creativity needed to devise solutions.

ACG Detroit

Wednesday, December 3, 2014

Frozen conflict

I wasn't familiar with the term "frozen conflict" until I saw it applied to the current stalemate in the Ukraine, but apparently it has been used to describe other similar disputes in the past, especially dealing with other former territories of the Soviet Union. In the Ukraine, "frozen conflict" seems an apt description of a situation in which neither side can win, at least for the moment, but neither can formally accept the status quo either. The government of Ukraine refuses to acquiesce in the illegal seizure of a portion of its territory, but cannot reclaim that territory from Russia either, especially since a large number of people in the eastern part of the country support Russia. So they are forced, if not to agree, at least to live with a breakaway region of the country. And people who inhabit that region are forced to live with continuing tension, occasional outbreaks of violence, distrust and fear. Other countries like the US, have imposed sanctions or otherwise attempted to influence events, but nobody wants to start World War III over the Ukraine.

It's a good reminder that not all conflicts are resolveable. "Resolution" of a conflict such as exists in Ukraine may be too ambitious a goal for now. What is needed is management of the conflict, to make life somewhat tolerable for the people affected by it. People need to develop a tacit understanding that flare-ups of violence should be avoided. People need to learn what topics to avoid in conversation; what neighbors to avoid; what side of the street to walk on. And people need to start building a few tentative bridges to the other side to prepare for the day when a fuller resolution might be possible.

Sometimes frozen conflict inspires the construction of borders and security fences, as have existed in the Korean peninsula for a lifetime, as in Berlin for a generation, as in Israel for most of its history, as in Cyprus for many years also. In other places the combatants cannot be so easily separated, as in Northern Island, and people just learn to associate with their own side. In most of these situations, the conflict is exacerbated by differences in culture, in religion, in language, in ethnicity, or in ideology, differences that allow each side to view the other side as "them," somehow completely unlike "us."

We have conflicts in our own country's history that have existed since its founding. The most serious conflict, over race relations, was supposedly resolved by a bloody Civil War, but a system of white supremacy was allowed to remain in place for a century after that. This conflict was resolved more completely by the Civil Rights movement, but not entirely then either. Our nation's frozen conflict still flares up today on the streets of New York City or Ferguson, Missouri. We can't just make it disappear.

Yet we still have an urge, when faced with intractable conflicts such as the one between Israelis and Palestinians, or between the East and West of Ukraine, or the one that arises from our own history of slavery and discrimination, to push the parties to the bargaining table to hammer out an agreement that will finally solve the problem once and for all and enable them to live in peace. In many cases, it is probably more realistic instead to accept that the conflict is not going to be resolved in one fell swoop, and help the people affected by it develop just enough tolerance and understanding to get by.

Wednesday, November 26, 2014

Trials, part 2

Here I want to talk about the emotional component of trials: both the agony and the ecstasy involved in this climactic phase of litigation. These emotions are stirred up in part by the incredible amount of work that needs to get done in the days and weeks leading up to trial, days that are consumed with pre-trial briefs and motions, jury instructions, witness and exhibit lists, re-reading the documents, preparing witnesses, etc. Time and cost considerations seem to go out the window. Whenever I am getting ready for trial, I seem unable to think about anything else. I disappear from family and other obligations.

12 Angry Men
It's not only the massive amount of preparation that turns litigants and lawyers into emotional wrecks. There is also the confrontation with the stark reality of the case itself, with all of its strengths and weaknesses, that worries you. It's like facing Judgment Day. Clients start feeling nervous, and at the same time somewhat helpless to control the outcome, like an expectant father. But they might also feel like an expectant mother, because they know this is the moment when they really have to deliver. Both lawyer and client share an awful feeling in the pits of our stomachs that stems from the realization that we are putting everything on the line in the service of our imperfect case, and the knowledge that it may not prove worthy. But we share a sense of excitement as well, because if everything goes well, and we've prepared as well as we can, we could also be on the verge of a great moment of triumph.

I start second-guessing myself before the trial even starts: did I analyze the case properly? Am I going to be able to score the points I am hoping to score? Was this case worth the amount of time and effort we expended on it? Is the jury going to understand the evidence and get the message I want to convey?

All of this emotional turmoil, second-guessing, and the realization of facing the moment of truth leads to a lot of settlements on the courthouse steps. But if the case doesn't settle there, there is still the emotional roller-coaster of the trial itself: the highs of a cross-examination question that hit the mark, the lows of an answer I wasn't expecting. The parts that didn't go over as well as I was hoping. The parts that went over better.

Last week I won a very satisfying jury verdict. So naturally I'm thinking, settlement is for suckers. There is no feeling better than winning. Plus my client deserved to win. But I've also experienced the other outcome, and it is the pit of despair. And then there are those results in between, where the outcome didn't seem to change anything, and made everyone question whether the whole exercise was worth it.

Most people enter into litigation without fully considering the impacts of trial, financially, mentally, morally, emotionally and in every other way. They haven't thought about how they would feel if they won, or how they would feel if they lost. They haven't thought about how they would feel while they were getting ready for trial, and how they would feel in the middle of it. That makes sense, because most cases are never going to get that far. But people are still looking for vindication when they file or respond to a lawsuit. They want to find out who is in the right and who is in the wrong, but they don't necessarily want to experience all the feelings of dread and anticipation that are required to obtain that outcome. The problem is that you can't have one without the other. And people should understand that it's the rare case where matters of principle really demand you to go through all of that agony and ecstasy to obtain the end result you thought you were looking for.

The point I'm making--that litigants should think through the consequences of trial before they embark on that enterprise--might seem to contradict the conclusion of my prior post, which was that we need more trials to help educate lawyers on what is important in litigation and perhaps reduce the amount of waste that takes place in prior proceedings. Here is how I might reconcile those positions: I think our system leaves most litigants feeling unsatisfied. They are especially unsatisfied when they are told to pay more or accept less than they think is fair because justice simply costs too much. Therefore I think we need to reduce the amount of pre-trial proceedings that stand in the way of trial. That way, more people who need the vindication (or the repudiation) of their positions they get from trial, can obtain that kind of satisfaction. Equally importantly, if we can reduce pre-trial proceedings, then more people are going to settle based on their evaluations of the case and their notions of fairness, rather than because they have been ground down by the high cost of litigation. That should increase satisfaction also.

Ideally, our system should allow you to try your case at reasonable cost. It should also encourage you to resolve your case by negotiated agreement, and that should happen to most cases. What the system should do less is to allow you to litigate your case to the point where you are forced to settle because you can't afford to litigate any more.

Sunday, November 23, 2014

Trials

Mediation is often touted as a better alternative to taking a lawsuit to trial. It usually is; but I believe that is still the wrong comparison to make in most cases. The vast majority--far more that 90%--of civil cases are never going to trial anyway. They are mostly going to be resolved by default, or by motion, or by negotiated settlement. And if by settlement, that will happen between the parties themselves or with the court's assistance or by mediation. It's true that a lot of cases can be settled by raising the specter of trial as an unappealing alternative, but that specter is not going to materialize in most cases anyway, because eventually most parties in most cases are going to find a way to avoid trial. They have to, because the courts don't have time to try more than a tiny percentage of the cases that are filed, and because it almost always becomes apparent in most cases that it just doesn't make sense to try them.

So if mediation is not an alternative to trial, what is it an alternative to? My answer is litigation. Mediation represents a method of encouraging parties to resolve disputes by cooperative instead of adversarial means. The sooner they can switch to a cooperative rather than an adversarial approach to resolving disputes, the sooner they can avoid or reduce the costs and risks of continued litigation. That includes motions, discovery, appeals, and all the other unpleasantness of litigation. Trial is only one potential step in that process. And probably the one least likely to happen.

Anyway, the problem with our civil justice system is not that we have too many trials. The problem is that we have too few trials, and we have too much of all the other stuff that happens in litigation. If we had more trials, then more young lawyers would have the experience of knowing what is important when the case finally gets to trial, and they probably would waste less time filing every possible motion, or deposing every last witness, or fighting over every last document or interrogatory answer. Because what you learn when your case finally does get to trial is that most of that activity is of little use at that point. Those discovery motions you filed? You're probably not going to look at those. All those documents you obtained from the other side? You're only going to mark a few of them as exhibits. That monstrous motion for summary judgment? It's going to remain in its box for the duration of trial.

Years ago I pretty much gave up on filing discovery motions, and decided to do whatever I could to prevent the other side from filing them. I found that I can almost always obtain better results by negotiating the resolution of discovery disputes rather than taking them to the judge. Then recently I successfully took a case to jury verdict where of necessity and by design our side didn't file any motions of any kind, or take any depositions, or designate an expert, or even depose the other side's expert. After that experience, I'm thinking I should renounce most of those activities also. It turns out to be a lot easier to surprise a witness on cross-examination if you have never taken his deposition. And a lot more fun also. And it saves the client a lot of money. I'm not saying you can avoid discovery or contested motion practice in every case. You can't. Some of it is quite necessary and important. But most of it is not.

Maybe this should be the test for deciding whether to take a particular step in a lawsuit: is it likely to help resolve the conflict? In other words, will the action you're thinking of taking be valuable if the case goes to trial, or will it bring the parties closer to settlement? If you don't need it for trial (and you're probably not going to trial anyway), and if it's not going to help bring the parties closer to settlement, then why are you doing it? You might just be exacerbating the conflict rather than helping to resolve it.

Sunday, November 9, 2014

Metrics

I was interviewed the other day for a possible article on court-ordered mediation. In discussing this topic, it's hard to avoid talking about such questions as settlement rates in various kinds of programs, or how mediation programs affect the workload of the courts. We are looking for statistical measures of the success of mediation as compared to other means of resolving cases in court (settlement conferences with judges, arbitration, neutral evaluation, lawyer-initiated settlement discussions, disposition by motion, trial, etc.) That also tends to be the way that judges measure the value of court-connected or private mediation programs. We can't help but wonder which method gives you the most bang for the buck.

But those kinds of measures only tell part of the story. Mediation has greater value than providing an efficient means of resolving cases. If that were all we cared about, we could probably devise even more efficient methods of resolving cases, say creating a computer program that could recommend a case's outcome, or tossing a coin. But the purpose of courts is not to reduce their workload, or even to dispose of cases. The purpose of the justice system is rather to allow litigants a chance to have their concerns heard, and to have their disputes resolved in a fair way. And mediation can probably do that more often than the courts can. In most cases resolved by the court system, the parties never get the chance to tell their stories, or have them heard and understood. Few cases go to trial, and the vast majority that don't are probably getting resolved in ways that do not allow much party participation. In addition to providing that opportunity for party participation, mediation also teaches participants ways of dealing with conflict that can empower them to resolve future disputes without the intervention of a higher authority. To assess the value of these kinds of intangible benefits, I would put more stock in surveys of party satisfaction, rather than relying solely on statistical measures of disposition rates.

I had a similar reaction yesterday at SCMA's fall conference when I attended a panel on restorative justice. In evaluating restorative justice programs, we tend to pay attention to such performance measures as recidivism rates, or to the disparities in treatment experienced by different ethnic groups in the traditional justice system. And those kinds of statistical analyses are undoubtedly important. What they don't tell you about, however, are the qualitative differences between an authoritarian system based on rules and punishments, vs. a system that relies on obtaining the offender's agreement to make it up to the victim in some way. It seems to me we might prefer a system that puts fewer people in jail and inculcates a greater sense of personal responsibility, even if it didn't achieve better results in terms of reducing crime rates. But we demand measurable results also, in addition to whatever intangible benefits accrue from a consensual, party-centered system. Fortunately for the field of restorative justice, it can demonstrate some impressive statistics in reducing the costs of crime, as well as beginning to transform the culture of the criminal justice system.

SCMA

I really appreciated receiving this memento of a memorable year as president of the Southern California Mediation Association, at our conference in Malibu. I didn't achieve everything I wanted to achieve. Some projects are still ongoing. But I really enjoyed my year leading an organization that performs much valuable work helping its members learn more about the field and fulfill their professional goals, and spreading the word to the public about the benefits of mediation.

One of the goals that I and others have sought to instill in the organization has been to maintain a positive, cohesive, open and welcoming atmosphere within the group. I frequently found myself using whatever mediation skills I have in dealing with internal conflicts (every organization has conflicts), one more illustration of my belief that learning about mediation provides value in any occupation in which you might find yourself, as well as in your personal relationships. I am proud that we never had a contested board vote during the year I have served as president of SCMA. I always felt that if we truly believed in the process we are espousing, we should endeavor to obtain consensus in all decisions.

It was satisfying to see the organization grow in size and in the scope of its ambitions. In my last president's message on the SCMA website, I outlined some of our main accomplishments this year--including expanding our outreach programs, moving forward with an initiative to certify mediators, expanding our geographical reach, improving communications, and advocating on behalf of mediators. I also thanked the people who made all of that possible, too many to list here.

Wednesday, November 5, 2014

Mitch McConnell on Conflict

Adopting a magnanimous tone in his victory speech last night, the presumptive future Majority Leader of the Senate had this to say on conflict in the political system:
“We do have an obligation to work together on issues on which we agree . . . .  I think I’ve shown that to be true in critical times in the past. I hope the president gives me the chance to show it again. . . . Just because we have a two-party system doesn’t mean we have to be in perpetual conflict.”
Senator McConnell's emphasis on finding common ground with political adversaries sounds commendable, and seems to represent a break from the strategy he pursued as Minority Leader. I'm not sure I would agree, however, that the two parties in our system do not have to be in perpetual conflict. It seems rather that perpetual conflict is built into the system. That is the whole point of having two parties. It's hard to think of any times in our country's history when the political parties have not been in conflict, and it seems unrealistic to expect that such conflict will end anytime soon.

The real question, and one I'd love to hear Senator McConnell expound upon at greater length, is how to deal with that perpetual conflict. How do two political parties, always at loggerheads, find a way to move forward together? Do the Republicans, now that they are assuming the majority, need to manage the Senate differently from the way the Democrats did when they were in the majority? Do the Democrats need to act differently as the minority party from the way the Republicans acted when they were in the minority? Do individual Senators from both parties need to abandon the kind of party discipline that McConnell himself attempted to enforce as Minority Leader?

Does McConnell have some ideas in mind for reaching agreement even when the views of the two parties differ, or was he only talking about making agreements in cases where the parties already agree? As Senator McConnell assumes the title of chief cat herder in the Senate, let's see if he can show us how to work together with the opposition and break the gridlock.


Tuesday, October 14, 2014

SCMA Fall Conference 2014

There is still time to register for the Southern California Mediation Association fall conference being held at Pepperdine University in Malibu on November 8, 2014. This year's conference, entitled "Roads to Resolution," will feature a number of panels discussing psychological considerations in mediation such as the psychology of greed, transference, the role of anxiety, and much more. Other panels will address innovations in the field such as mediator certification, organizational conflict management, the use of improv techniques in mediation, and various technological advances in the field. We are also for the third year in a row, featuring an advanced track for experienced mediators.

But the SCMA fall conference is not just for mediators and aspiring mediators. We are featuring panels on new opportunities to put mediation skills to use, new careers in conflict resolution, and opportunities to collaborate with other professionals. I am really excited about the quality of the presenters who have come forward this year. They have put together some thought-provoking materials which we are gathering on the online conference journal page, and have put a lot of time and effort into their presentations.

Our keynote speaker will be Los Angeles City Attorney Mike Feuer, being honored for bringing a more collaborative and problem-solving approach to the City Attorney's office. We will also be honoring Professor Russell Korobkin from UCLA Law School at a Friday night reception.

We're offering a wealth of information and a chance to connect with the Southern California mediation community. And it's worth the trip just for the scenery alone. For more information, click here.


Wednesday, October 8, 2014

Losing

So last night the Dodgers dropped the final game of the NL division series to the Cardinals, who have now blocked the Dodgers two years in a row from attaining their World Series goal. And what I'm reading in today's paper is about who to blame for the loss. Here is a team that set out to spend whatever it took and do whatever was necessary to get to the championship, and yet they came up short once again. It's hard not to want to blame somebody in the organization in that situation. If you were willing to do anything to win, and yet you failed to win, there must have been something you did wrong, right?

Certainly there is no shortage of candidates for blame. The ace pitcher who seems to lose control against this particular team at particular moments. The unreliable bullpen. The manager who made some questionable decisions. The general manager who lost some opportunities for better trades. The hitters who never quite seemed to jell as a team. The new owners who somehow failed to put all the pieces together in the right way.

Yet finding the right person to pin the blame for failure can't be the whole story. Particularly in baseball, an inherently cruel and tragic sport in which failure is pre-ordained. Under the inexorable rules of baseball, one team must always lose. That is true in other sports, but even more true in baseball where ties are not permitted, and the game can continue indefinitely until somebody finally loses. That means that no matter how well both teams play, no matter whether they have done everything humanly possible to insure victory, one team is going to lose anyway.

Baseball is designed to test the limits of human endurance in other ways. A pitched ball travels too fast for the batter to actually see where it is going in time to adjust their swing. Batters basically have to guess where the ball is going in order to hit it, which is why every hit in a baseball game seems miraculous. The game is so long that pitchers hardly ever finish a complete game. Most of the time, they must be removed when they reach their physical limits. So even the best batters repeatedly strike out, and the best pitchers have to be taken out. Everyone reaches the point of failure, as if by design. Furthermore, in baseball, even the best teams only win about 60% of their games over the course of a season, and the worst teams still win about 40% of the time. You do not see the long undefeated streaks that you sometimes see in football or basketball. No matter how well you play baseball, you still have to accept a lot of losing.

If the game is set up for failure, then blaming yourself for failure can only tell part of the story. Sure, there are always mistakes that you can point to to explain a defeat, and sure the team that makes the fewest mistakes will usually win. But taking the game last night as an example, there were also numerous breaks that could have easily worked out differently. Say Justin Turner who came in as a pinch hitter in the 9th inning, had hit a home run instead of striking out. One slight adjustment of the wrist in a single second could have changed the result. And then everyone on the team would be a hero and we wouldn't be looking for anyone to blame. Instead we'd be talking about how Clayton Kershaw pitched a hell of a game on short rest, and we'd say that allowing one tiny little three run homer in the 7th inning only showed that Kershaw held the Cardinals to a small enough lead that the Dodger hitters were easily able to overcome it.

I heard Orioles manager Buck Showalter interviewed on the radio this morning saying some wise things about baseball. He said that managers sometimes make unquestionably correct decisions that turn out to be disastrous. And sometimes they make very bad decisions that somehow work out. Yet fans are so results-oriented that they judge the quality of the decision by the outcome of the game, even though the game's score does not perfectly reflect the quality of the decisions or the quality of the play. I'm not saying the result is all luck. But I am saying that shit happens in baseball, and in life as well, and you can't blame yourself for all of it.

Thursday, September 25, 2014

When to fight

President Obama's speech to the United Nations this week is worth reading to study the evolution of the president's foreign policy views in response to new and continuing conflicts around the world. With respect to such crises as Russian aggression toward Ukraine, preventing a nuclear Iran, and the Israeli-Palestinian conflict, the president reiterated his belief in finding cooperative, negotiated solutions:
This speaks to a central question of our global age: whether we will solve our problems together, in a spirit of mutual interests and mutual respect, or whether we descend into destructive rivalries of the past. When nations find common ground, not simply based on power, but on principle, then we can make enormous progress. And I stand before you today committed to investing American strength in working with nations to address the problems we face in the 21st century.
But when it comes to the latest threat presented by the surge of ISIL in Syria and Iraq, President Obama took a different tack:
There can be no reasoning – no negotiation – with this brand of evil. The only language understood by killers like this is the language of force. So the United States of America will work with a broad coalition to dismantle this network of death.
So what puts this group beyond the pale? Surely they are still human beings, and many of their followers are motivated by the same concerns as the rest of us. Is there no possibility of accommodating whatever legitimate interests they may have, and involving them in the political process? Not while their murderous actions disqualify them from the benefit of more civilized solutions, is President Obama's answer.

While a lot of mediators and other peace advocates might find this answer disconcerting, many of us realize that not all problems are susceptible to a negotiated resolution, and that sometimes you do have to fight. (See Robert Mnookin's book Bargaining with the Devil, which provides some case histories of when to fight and when to negotiate.)

Even though pressing forward with a military solution to this problem, President Obama was still careful to stress that he was not advocating war with Islam.
So we reject any suggestion of a clash of civilizations. Belief in permanent religious war is the misguided refuge of extremists who cannot build or create anything, and therefore peddle only fanaticism and hate. And it is no exaggeration to say that humanity’s future depends on us uniting against those who would divide us along fault lines of tribe or sect; race or religion.
The president took particular care to invite other Arab and Muslim nations to join in condemning the violent and extremist actions of groups like ISIL. The message: Choose sides not based on ethnic or religious identities, but based on whether you are willing to adhere to principles of human rights, self-determination and peaceful resolution of conflict. If you're not willing to adhere to those basic principles, then you must expect the rest of the world to respond with force.

This message will not appeal to those who would divide us by ideology or ethnicity or nationality or religion. It rejects the world view that on one side are arrayed the forces of good (white, Christian, capitalist, or whatever other traits one wants to associate with that side) vs. on the other hand the mighty forces of evil (whether fascists, Communists, Muslims, dark, etc.) Instead the president is suggesting that we assemble from all regions and ideologies those who respect the ideals of peace and freedom, and together that far larger force will defeat the small and weak enemies of civilization.

Friday, September 12, 2014

LA Court Update

More than a year after closing most of the LA Superior Court's ADR program, in conjunction with consolidating and closing courtrooms around the county and other cutbacks, how is the court faring? For all the predictions of disaster, it seems this court system is managing surprisingly well. The courts have been able to maintain most trial dates, in the administrators' view probably the most important requirement for keeping the court processing its workload. Local rules have been modified to decrease the number of court appearances, especially in personal injury cases. Judges are figuring out how to muddle through with fewer staff positions, and parties are coping with a system that has significantly reduced their ability to interact with court personnel.  In other words, cases are still moving through the system, but they are getting less attention along the way.

Cases that used to be resolved with the aid of the ADR department's mediation are still being resolved somehow--presumably either through private mediation, or through negotiation by the parties' attorneys themselves, or through the court's expanded settlement judge program. What has slipped somewhat is the court's ability to resolve motions. In contested cases where the parties feel the need to file discovery motions or summary judgment motions or other motions, the courts cannot set those motions for hearing as quickly as they used to, and that has resulted in significant delays.

As a result, the court is still looking for help in processing its large caseload. Meanwhile there are still lots of mediators out there who would be willing to help. It's frustrating that we can't seem to figure out a way to put them back to work. In the court's view, what is lacking is an administrative structure. In the mediators' view, what is lacking is a push from trial judges to send cases out to mediation.

Perhaps we need to stop looking at mediation programs merely as a means of helping the courts clear their dockets. Mediation's true value is instead providing a means for parties to have their concerns heard and perhaps understood. That is something the courts are simply unable to provide for the vast majority of cases passing through the system. Most litigants experience the court system as a maze where they hardly ever find a chance to interact with the judge, and never have an opportunity to tell their stories. Finding a way to steer more cases to mediation would reduce the court's workload to some extent, but would also have the chance of increasing litigants' satisfaction with the justice system.

Sunday, September 7, 2014

Truth, justice and peace

It being a weak weekend for new movies, we decided to settle for The November Man, a grade B thriller starring Pierce Brosnan. Brosnan plays Peter Devereaux, a retired CIA agent who is lured out of his comfortable life in Lausanne to perform another mission that takes him first to Moscow and then to Belgrade. He's a cold-blooded killer, but eventually we learn that he might have some soft spots. I'm not going to summarize the convoluted and somewhat predictable plot, but will jump right to the moral dilemma at the heart of the story. It involves a Russian politician, Arkady Federov, who is on the verge of being elected the next Russian president. The CIA is interested in helping Federov out, since he is pro-American and might even lead Russia to join NATO. Now there's a tempting prospect in this time of increasing tensions with Russia over Ukraine and elsewhere. Think of it: finally a true end to the Cold War conflict that has been hanging over the world's head all our lives.

But it turns out that Federov is hiding some dark secrets, in which the CIA is also complicit. And Devereaux has to decide whether to help bury the dirty past in order to bring about peace in the world, or to expose Federov's crimes and cause his downfall, which will keep the US-Russia conflict alive. It's the age-old philosophical question of whether the ends justify the means, a common theme in spy stories. Naturally there is a beautiful woman involved who may have to be sacrificed in order to bury the scandal. Should he let her die, and thereby help realize the goals for which he played the spy game for so many years? Or should he help her reveal the secrets that will destroy Federov, tarnish the agency, and threaten world peace? Devereaux gives a rather cavalier response to this question when it is posed to him, but it actually represents a serious dilemma that is frequently encountered in attempting to resolve conflict.

One of the top reasons people advance for being reluctant to agree to a negotiated resolution of conflict is that they cannot abandon the quest for truth and justice. I just heard this feeling expressed recently in a mediation between two former business partners who each felt betrayed by the other.   World peace was not at stake in that case. Still peace between these two parties, possibly even forgiveness and reconciliation, might be achievable, perhaps only at the expense of pursuing justice. At first neither side was quite ready to let go of the conflict. Each still wanted to punish the other side and vindicate their positions in court. Eventually each conceded some ground to the other, making resolution possible.

I'm not sure we should ever try to talk people into sacrificing truth and justice in the name of peace. Instead we might talk about how difficult (and costly) it is to obtain truth and justice in our imperfect system. Or even better to help people appreciate at least a little bit of the other side's conception of truth and justice. That way people will sometimes realize that a negotiated resolution might represent the fairest possible solution.

What they won't be happy being told is that they should give up on the quest for truth and justice. That goes against the grain, not only of nearly every story Hollywood has ever told us, but probably of human nature.

Sunday, August 24, 2014

Philosophy

An entertaining new book on philosophy (who would have thought there could be such a thing) called Plato at the Googleplex, transports Plato to various settings in our modern world, and attempts to show that we are still grappling, or should be grappling, with many of the same problems that Plato addressed in dialogues written more than 2000 years ago. The book's Plato character makes you wonder whether, for example, Google does a better job of organizing knowledge than the ancient philosophers did, or whether we've made any progress in dealing with child rearing or love or figuring out how to live a better life.

This "Plato" leads the people who pass for our modern dispensers of wisdom (such as search engine specialists or Tiger Moms or advice columnists or cable news producers) through the kinds of Socratic dialogues meant to help them think about what is fair, or what is most satisfying, or how best to organize society, or what ideals are most important.

Naturally these dialogues made me wonder whether philosophy as exemplified by these Socratic dialogues has any relevance to the practice of mediation. It seems obvious that parties involved in conflict also need help in identifying what is most important to them, what results seem fair and why, and similar considerations that enter into resolving a dispute. In that way, the mediator is acting in some respects like a philosopher, by challenging parties to consider their noblest impulses, and by asking people to step outside themselves to try to imagine what would constitute a just resolution for all parties.

If we try to resolve a dispute only by making predictions about how the legal system might handle that dispute, we might fairly be accused of acting like we are stuck in Plato's cave. We are blinding ourselves to other considerations that might provide a better solution. On the other hand, if we venture outside the legal system, how do we identify the values that would lend legitimacy to mediated resolutions? This is where philosophy might be able to help.

We know that mediators sometimes need to act as an amateur psychologist, an amateur economist, an amateur diplomat, an amateur judge, or apply other kinds of expertise to help resolve conflict. That's what makes the practice of mediation so interesting. We might not have realized that mediators also need to act as amateur philosophers. But in helping parties move beyond vindictive or selfish concerns to discover their best selves, as well as finding principles that can guide them to resolution, mediators are practicing philosophy whether they know it or not. Reading Plato at the Googleplex makes me want to dig out my old copy of the Republic to explore further whether these ideas have practical value in dealing with modern problems.

Thursday, August 14, 2014

Marching together

What a remarkable turnaround we witnessed today in Ferguson, Missouri, where five days of protests in the wake of the shooting death of Michael Brown this past weekend, had been met with police armed to the teeth with military weapons and tactics. But when Governor Nixon finally decided to replace the local police force with state highway patrol officers, the situation changed almost immediately. Today the new representatives of law enforcement started marching with the protesters, and a much different atmosphere returned to the streets.

Yesterday law enforcement viewed the protesters as the enemy, and felt they had to meet them with force to preserve order. All that did was inflame the situation, and exacerbate the conflict.


Today, law enforcement took the opposite approach. First the new commander, Ron Johnson, renounced violence, saying his officers would not be carrying and using tear gas, as the local police had. He apologized for the prior use of tear gas, even though he had had nothing to do with that decision. Second, Captain Johnson emphasized the need to listen: “Sometimes you just have to let people speak and make yourself listen. I used to tell my kids when they were small, open up your listening ears.” Third, Johnson identified common interests with the protesters, saying that "we all want justice. We all want answers." Finally, Johnson marched alongside the protesters.


In one day, this new approach achieved what peacemakers dream of, turning a confrontation where both sides distrust the other, and respond to each other's provocations with forceful opposition, into a joint effort where both sides now appear to be working together to solve a problem.

Once we drop the war mentality, once we stop treating our opponents as the "other," once we identify common goals between ourselves and the opposition, we find ourselves no longer needing to fight our opponents, but instead marching alongside them toward resolution. Note that the parties haven't yet resolved the underlying problems, and haven't suddenly decided they agree with each other. Far from it. But they are approaching this conflict with a much different attitude. Let's hope this new spirit holds.

Tuesday, August 12, 2014

Improvisation

Last night I had a chance to assist at an improvisation class, playing the role of mediator to actors working out various conflict situations. The class arose out of some discussions with the teacher, Rob Watzke, about the similarities between the techniques used in improvisation and mediation. In both situations, careful listening is imperative. You must be sensitive to the content as well as the emotional underpinnings of statements made by other participants in order to advance the process. In both situations, it is also important to stay positive. Whatever new bit of material is offered to you by a fellow improviser, you must use it. You cannot reject it, or the scene dies. Similarly, in mediation, it is better to thank the other side for their proposals, and make a counter-proposal, rather than to simply reject or attack the other side. In both improv and mediation, creativity is also key to success. Improvisers are encouraged to come up with all kinds of crazy suggestions, sometimes the crazier the better, as these fresh additions lead the scene in new directions. Mediators also encourage the participants to brainstorm to come up with creative solutions that might satisfy the interests of both sides.

The actors I had a chance to work with were very talented and a lot of fun. But after watching them create some warm-up scenes, I could see some of them having difficulty doing scenes that asked them to try to win an argument, but most had no trouble at all enacting an argument they were trying to lose. It seemed that improvisation training makes it difficult for these actors to do what comes naturally to people embroiled in real conflict. Parties in conflict are generally focused only on proving their own points. They are unable even to recognize what the other side is saying. To the extent they even pay attention to the other side's points, they do so only to prepare their response. That's why a mediator is often needed to transmit the other side's perspective in a way that might be absorbed.

Parties in conflict could be compared to actors who work from memorized scripts. They only listen to the other side enough to recognize their own cue to speak. Actors trained in improvisation, on the other hand, are always trying to build something from the information the other player is giving them. They had some trouble with an assignment that simply asked them to try to "win" the argument, because they couldn't help but pay attention to the information the other party was giving them, and try to incorporate it into the scene. Their training also kept them focused on guiding the scene toward a satisfying resolution, rather than going around in circles pointlessly, as people in actual conflict tend to do.

So when my turn came to act as mediator in various scenarios that resembled some I have handled in real life, I found these actors very good at expressing emotion and setting up a conflict. I was also amazed at all the new material they kept adding to the conflict. But then I found it was much too easy to lead them to resolution. These people were actually trying to search for the underlying motivations that led themselves and their partner into the conflict, and find their own ways out of it. So we quickly found out, for example, that the guy complaining about his neighbor's barking dog was only doing so because of his own childhood trauma at seeing the death of a family pet; and that the store manager was only piling an unfair workload on an employee because she had broken off their romantic relationship, but that she actually wanted him back if he would only change one little thing about himself. (This was probably the only employment mediation I will ever handle that was resolved by a circumcision!) In the real world, parties in conflict work hard to avoid revealing these kinds of vulnerabilities. And that's why mediations in the real world take hours, while we were able to wrap up cases on the improvisational stage in about ten minutes each. It made me think we should send divorcing couples or feuding business partners to improv class so they can learn some techniques that might make the process go a lot quicker and easier.


Thursday, July 24, 2014

Prisoners

In the first episode of the second season of Orange is the New Black, the series presents a variation on the prisoner's dilemma problem that is often discussed in mediation programs and texts. Piper and her former girlfriend Alex both have to testify against the drug kingpin they used to work for. Alex persuades Piper to lie and say she had no contact with the guy, otherwise he might take reprisals against them both. After giving her testimony, Piper finds out that Alex in fact told the truth at the trial, leaving Piper exposed to a possible perjury prosecution and an increase in her sentence.

In the prisoner's dilemma scenario, an opportunity to communicate as well as familiarity with the other player's past moves is supposed to allow each player to learn whether or not they can trust the other, and if trust is established, to encourage greater cooperation and mutually beneficial decisions. In the show, the two players did have an opportunity to communicate and also had a long history together.  That is what leads Piper to trust what Alex was telling her and follow her advice. What she failed to consider, however, was that this long history should not have led to greater trust but instead to greater suspicion. In season 1 we found out that Alex had already played the defector card once, by betraying Piper and landing her in prison in the first place. In that situation, the parties' history and knowledge of each other's actions should have led Piper not to trust Alex again.

Piper seems to have such a strong need for love and acceptance that she trusts Alex even when she should not. I have seen it happen occasionally in mediation that a party develops (or previously had) warm enough feelings for the other side, that they make deals that they might later regret. Communication and trust are wonderful things , but nobody wants to be played for a sucker either. Sometimes it's a good idea to stay on your guard even while the other side is trying to play on your warm and fuzzy feelings. The way to test a deal is to consider not only whether the deal will work if the other side lives up to it, but also whether the deal makes sense even if the other side defaults.

That's a reminder that it is the lawyer's job to provide that kind of dispassionate advice. Piper's real mistake in this episode was failing to follow her lawyer's good advice, and instead listening to her untrustworthy friend.  

Saturday, July 19, 2014

War and peace

Conflicts that have recently erupted into violence in Gaza and in Ukraine raise the question of how to end the killing and lead the parties back to a less destructive process. President Obama yesterday, in his press conference following the tragic downing of a Malaysia Airlines passenger jet over the Ukraine, attempted to respond forcefully without further inflaming the situation. The president was careful not to jump to any more conclusions than are warranted by what we know so far. He was firm in condemning the responsible parties, yet careful to emphasize the goal of de-escalating tensions and violence so as to prevent further loss of life.

In short, it was just the sort of speech that was bound to infuriate hawks such as Senator McCain who called the president's response to the fighting in the Ukraine "cowardly." At the same time, it wasn't the kind of speech likely to inspire the president's supporters either. What would probably stir people more might be a Rooseveltian ("day that will live in infamy") or Churchillian ("fight on the beaches") type of response to the outrageous act of violence that appears to have been committed by Ukrainian separatists with the help of their Russian patrons.

But remember that both Roosevelt and Churchill made their stirring remarks in an effort to whip up national resolve to fight and defeat an enemy that had already brought war to their shores. Our side needed to be mobilized for all-out war. President Obama's much harder challenge is to stir up the desire for peace, not only to avoid a military confrontation with Russia, which no responsible person wants, but also to reduce tensions in the Ukraine. He faces a similar task dealing with the situation in Gaza.

Even though the United States supports the Ukrainian government in its struggle against the separatists, and supports Israel in its struggle with Hamas, the president was attempting to play the role of mediator. To do that you have to emphasize the goals of fairness and impartiality. You have to be careful not to exaggerate threats or to accuse the enemy of anything more than you can prove. You have to give your adversary a face-saving way out of a dangerous situation.

Laying out a path to peace in this way is far from easy. It's certainly not cowardly. The challenge for the president, as for any would-be mediator, is to persuade the parties that they can accomplish their goals more readily by peaceful means, and that further retaliation will only make the situation worse. Perhaps to make peace, we have to talk less about the grand designs and historical claims of the respective parties, and turn the talk toward such mundane topics as implementing a ceasefire, conducting an independent factual investigation of plane wreckage, restricting arms shipments to the combatants, and calculating the damage to lives and property inflicted by the scourge of war. If the parties can focus their effort on cleaning up the mess, maybe they will consider less destructive means of managing these conflicts.

Monday, July 14, 2014

Dawn of the Planet of the Apes

Surprisingly, the second in the new series of Planet of the Apes movies (Dawn of the Planet of the Apes) presents a pretty good illustration of the forces that drive groups into violent conflict, or provide opportunities for diplomacy. As the story begins, we find a rapidly-evolving colony of apes living in the woods, while a group of humans, perhaps all that is left of humanity (most people having been wiped out by a virus and the mass chaos caused by the virus) are struggling to survive in what's left of San Francisco. An exploring party makes contact with the apes, and both sides have to decide whether to go to war against the other, or find a way to co-exist peacefully.

On each side, there is an advocate for peace, and a counter-advocate for war. The apes' leader, Caesar, still has kindly feelings toward humans, and thinks they might be able to establish trust and respect each other's boundaries, while his rival Koba wants to keep humans away or destroy them. The two points of view on the human side are represented by Malcolm, who asks for a chance to negotiate with the apes to allow the human city to re-build, and Dreyfus, who is skeptical of this diplomatic mission, and makes preparations to fight.

What I liked about this set-up is that there is a logic to each of these four points of view. The dreamers on each side who hold out hopes for peace are correct in pointing out the awful toll that war would take. They recognize the risks, but only ask for a chance to test whether a means can be found for both groups to achieve their goals without threatening the other's. On the other hand, those who advocate for war are correct in suggesting that the other side cannot be fully trusted, and that peaceful coexistence might never be possible.

The movie also demonstrates the powerful roles that fear, distrust, selfishness and bias all play in leading both sides toward violent conflict. Peace is difficult to achieve, and fragile to maintain. It requires individuals to get to know and understand individuals on the other side. It requires trust, which can easily be broken. War seems natural for those not ready to shed their prejudices and fears.

An important lesson for conflict resolution is well illustrated in this film. That is that you generally can't use logic and reason to persuade people to avoid taking a confrontational approach. The hawks will not be persuaded by logic, and their arguments are just as strong as those of the doves. Instead you have to appeal to deeper emotional needs, such as self-preservation or brotherhood, in order to avoid destructive conflict.

(For those who prefer historical drama to science fiction, an even better movie with similar themes is Ridley Scott's Kingdom of Heaven, illustrating the forces that drove both sides to war leading up to the siege of Jerusalem in 1187.)

Sunday, July 6, 2014

Joint sessions

I heard about a mediator who started a session by asking all the participants to spend some time talking about their personal histories and interests, presumably in an effort to get the parties to see each other as human beings and establish connections that might help them resolve the dispute. Lo and behold, these parties did resolve the dispute to each side's great satisfaction, but at least one side later reported that they disliked this touchy-feely aspect of that mediation. So even though this technique was proven to work well, it still made one of the parties uncomfortable enough that they would probably prefer a more conventional and perhaps less effective approach.

Mindful of stories like that, I try to make sure parties buy into whatever process we might be following in a mediation before proceeding. So I don't force participants into joint sessions. I also don't require people to share details of their private lives, or sit around the campfire and sing Kumbaya. But I do generally encourage parties and attorneys at least to think about doing a joint session at some point in the process. I also tell them we can retreat to separate rooms if they feel uncomfortable about continuing.

In Southern California, it's often an uphill battle to persuade parties and attorneys even to consider participating in a joint session. For some reason, joint sessions have a bad name here, unlike in a lot of other places where they are apparently still the norm. Maybe that is just the way the practice has evolved. Maybe it is because parties in mediation have somehow gotten the wrong idea about what is supposed to happen in a joint session. Or maybe it's because some of the mediators who still hold joint sessions are doing them wrong.

As an example of the common reluctance to engage in joint sessions, one of the attorneys in a case I mediated recently told me almost as soon as he walked into my office, that he disliked joint sessions and thought a joint session was out of the question in this case. That would exacerbate the conflict further, he told me. It would give each side an opportunity for chest-thumping that would only inflame passions on the other side. The parties were already angry enough with each other, and probably shouldn't be in the same room. This was far from the first time I've heard these perceptions expressed.

I responded that if we did decide to do a joint session, I didn't expect to see any chest-thumping. I had no desire to listen to each side's attorneys give a preview of their opening statement or their closing argument at trial. I don't think that is productive. Instead, what I suggested we might do in a joint session was to exchange information that might be helpful to resolution of the case. Information about the parties' respective future business plans, for example. Information supporting the parties' respective damage claims, to the extent that had not already been exchanged. Exchanging that kind of information directly across the table is often more efficient that requiring the mediator to go back and forth to convey questions and answers. It's also helpful to dispelling some of the suspicions and distrust that builds up between opposing parties in a lawsuit.

A second purpose is to allow the mediation to be conducted in a more transparent manner. Rather than wondering what is happening in the other room, each side can hear directly from the other side what is troubling them, and what is important to them. If mediation works by means of communication and understanding, that process is often facilitated by face-to-face contact. Not always, mind you. Sometimes parties are more receptive to having the mediator convey information indirectly. But you lose a lot of body language and emotional content that way.

Finally, in the ideal situation, a joint session can allow the parties to brainstorm together to design a solution to the conflict, rather than work at cross-purposes and in opposite directions. But it takes some time to break down the barriers of distrust and hostility that prevent parties from working together.

Eventually, the lawyer who adamantly told me at the beginning that he was opposed to joint sessions became so curious about what was going on in the other room, that he finally decided he wanted to go in and meet everyone, and convey to them some of the things that were motivating his client. And he did. And we eventually settled the case. With only a small amount of chest-thumping.


Thursday, June 26, 2014

Multi-tasking

Some interesting back-and-forth occurred during the last panel of the day yesterday at the 2014 ODR conference, when David Bilinsky, a legal practice consultant, described the high tech tools he uses in teaching law students. To oversimplify his presentation, these tools allow students to conduct side discussions during lectures in a chat feature that can be employed either during an online or even an in-person class. The theory is that these side chats can expand on the lecture, and reinforce learning by facilitating more interactive participation.

This idea rubbed some people in the room the wrong way, especially those of us who pre-date the online revolution and went to school in the days when teachers constantly told us to stop chatting with our neighbors and pay attention. Even though multi-tasking is now the norm, a lot of us still wonder whether it can really done effectively. Texting while driving, for example, has been known to cause a lot of deadly accidents.

This was the point in the program where the ideas behind using technology to increase efficiency and do things that we are not capable of in the real world, came into direct collision with one of the fundamental ideas behind mediation, which is that active listening and understanding are key to the success of that process. Especially if we are trying to teach conflict resolution and negotiation skills, where we need to impart the importance of paying close attention to what others are saying, staying attuned to the moment, and reflecting empathetically on what is being communicated, does it make sense also to encourage the listeners of those lectures simultaneously to chat with their fellow students about whatever related or unrelated topics may come to mind during the lecture? Well, said some of the panelists, students these days are doing that anyway. I understand that, but wonder whether what we really need to be teaching is how to put down the cell phone and the laptop and just listen carefully to what somebody else is saying without letting your own activities get in the way.





ODR 2014

Attending the 13th International Online Dispute Resolution Forum, being held at Stanford Law School, the first time the conference has taken place in the United States, offers a glimpse into the future of conflict resolution.

Ethan Katsch, dubbed the "father" of online dispute resolution, started the day by telling us that while it began as an outgrowth of ADR, ODR is developing into a distinct field with its own expectations, assumptions and values. I think this might be true, but I'm skeptical based on the evidence so far. Online tools are still mostly applied to allow us to conduct traditional litigation, arbitration, mediation, or negotiation, in more efficient ways.

As a number of speakers told the group, traditional practitioners are often highly resistant to online dispute resolution. John Pardun from JAMS said that about 80 or 90% of their clients are either unfamiliar with ODR or unwilling to use it. India Johnson, the CEO of the American Arbitration Association, mentioned that many of their panel arbitrators are highly resistant to technology. And Kent Walker, general counsel at Google, speaking about patent litigation, thinks that the difficulties of calculating the commercial value of patents, as well as the likelihood that they will be upheld in court, make these cases unsuitable for ADR or ODR. (I wonder about that, since I often find that the great uncertainties of litigation are helpful to mediated resolution of complex commercial disputes: if neither side is sure what something is worth, that leaves a lot of room for potential agreement.)

These attitudes are bound to change, and the change seems to be occurring from the bottom up, rather than the top down. One of the themes of the day concerned the vast numbers of disputes that are too small to be resolved by the traditional justice system, and ODR's potential to efficiently serve this vast market. Services like Rocket Lawyer, Legal Zoom, Smartsettle, Modria, and eLance, all of whom had representatives at the conference, have developed efficient ways of delivering conflict resolution services to parties for whom the traditional court system makes no sense. Many of these consumers are not well served by traditional ADR either.

Potentially this enormous under-served market could even absorb a lot of the lawyers whose workloads have been affected by the shrinking market for traditional legal services. Maybe there is hope that the dawning new age of robot lawyers will create some new opportunities for human lawyers as well.


Sunday, June 22, 2014

Conflict resolution

Mediators often describe the process they lead as antithetical to the traditional justice system. I do it myself, sometimes explaining to the participants in a mediation that we do things in mediation the opposite way from court. For example, I might point out that in a courtroom, the judge is the most important person, and arguments in court are directed at the judge; while in mediation the parties are most important, and arguments are directed at each other.

Mediators also sometimes try to persuade parties that the process is much better than litigation. Litigation is "bad" because it's expensive; or because it's adversarial; or because it produces far from perfect results. Mediation is "good" because it's consensual; or because it's cathartic; or because the parties control the outcome. I use these arguments myself sometimes, in an effort to persuade parties to resolve disputes in a mediated setting to avoid the pain and expense of continued litigation.

Rather than think of litigation and mediation as two competing systems, however, it might be more accurate to consider that they are both aspects of a more complete whole. When we choose to litigate, for example, we might be surprised to find ourselves in a less than wholly-adversarial process. Disputes between the parties in litigation--from something as mundane as getting an extension of time to file a pleading, to discovery disputes, to more substantive disagreements--are usually best resolved by a process of negotiation. Indeed, many courts require that parties attempt to meet and confer to resolve such disputes before bringing them before a judge. Many judges get very involved in settlement negotiations, or at least encourage the use of settlement conferences, or face-to-face negotiation to settle cases. And the vast majority of contested cases in litigation end in settlement, through a process of negotiation, not by trial.

When we choose to mediate, we do it with the backdrop of the court system and the entire body of legal principles and court cases behind us. We can disregard that backdrop if we choose, allowing the parties to reach results very different from the way the legal system might resolve them. But more often parties, their attorneys, and the mediator, all treat the traditional justice system as a touchstone to guide their private attempts to resolve the dispute. So we often find ourselves in mediation attempting to predict how a judge or jury might decide the controversy before us, assigning weight to the probabilities of an outcome in favor of one side or the other. Or the parties might make the same legal arguments they would make in court, arguing that the result should favor one side or the other because that is the result the law demands. In that situation the legal system can serve as a measuring stick to assess the fairness of a proposed resolution. Some mediators function very much like judges, advising the parties on how the case should be resolved under the law. And parties sometimes look to the mediator for an authoritative-sounding resolution.

It seems that in nearly every dispute, parties use a combination of adversarial and non-adversarial means to reach resolution, and parties always retain the full spectrum of tools at their disposal. So even when parties find themselves in court, they know they will probably negotiate their way out of court. And when parties decide to mediate, they still keep the hammer of the litigation system in their back pockets if they cannot resolve the dispute through mediation. In other words, mediation never operates completely outside of the traditional legal system. Even when we try to ignore it, that system always intrudes, like an elephant in the mediation room.

One reason I decided to change the name of this website to "Conflict Resolution" is to recognize that the process of conflict resolution is all of a piece. Just as von Clausewitz recognized that war is the continuation of politics by other means, so litigation is merely a more adversarial form of conflict resolution. We need not view either litigation or mediation as "bad" or "good," nor see the two competing processes as in irreconcilable conflict with each. They are both tools, to be used as appropriate, to help resolve conflict.

Thursday, June 12, 2014

Patent litigation

While not very impressive grammatically, the statement published today on Tesla's website that "all our patent are belong to you" might have some earthshaking consequences in the intellectual property world. Tesla has decided that in the interest of developing an electric car market and battery infrastructure, they will no longer bring patent infringement lawsuits against anyone using their electric car technology in good faith. Perhaps there is an element of "save the world" altruism in this gesture, as Tesla claims to be motivated by a desire to get all gasoline-powered vehicles off the road. And Tesla acknowledges that they themselves can't possibly build enough electric cars to accomplish that goal. But Tesla's new policy also seems like a remarkable recognition that the usual strategy of protecting intellectual property rights for the purpose of preventing competition or obtaining license revenue, might actually be counter-productive to Tesla's interest in building the electric car market, and creating the necessary support network of charging stations that will sustain it. Non-enforcement might be better for business.

Will Tesla's new stance cause other companies to re-think the value of enforcing their patent rights? Quite possibly if the patent-holder is, like Tesla, trying to expand the market for its products, and encourage the development of related technology. But even apart from that situation, some patent holders might well question whether the pursuit of patent infringement claims is worth the enormous cost and risk, and whether a more open approach to technology might better serve companies' business interests. Elon Musk's explanation of his company's new policy recognizes that receiving a patent often only buys you a ticket to a costly lawsuit, something that many other patent-holders have learned the hard way.

I'm not necessarily endorsing Tesla's new strategy for everyone, as it probably doesn't make sense for a lot of businesses, and I'm not sure whether it's good for my business either. But the question whether to pursue litigation to enforce or defend against intellectual property claims, as opposed to some other strategy, is always worth careful consideration for every business on either side of the issue.

Saturday, May 31, 2014

Confidentiality and due process

Can mediation confidentiality threaten a party's right to due process? A recent case out of the Central District of California, Milhouse v. Travelers, currently on appeal to the Ninth Circuit, held that the due process rights of a party can override the parties' agreement, and a state evidentiary rule precluding the admission in any subsequent proceedings of statements made in mediation. The district court allowed an insurance company being accused of bad faith refusal to settle a claim, to introduce evidence of the plaintiffs' demands made during a mediation, for the purpose of showing that it was the plaintiffs, not the insurance company, who were acting unreasonably.

Generally in California mediation confidentiality is treated as sacrosanct. Maybe a little less sacrosanct in federal court than in state court, but confidentiality is still highly protected in both systems. Courts understand the value of mediation in helping to resolve disputes. They also understand that parties are often reluctant to participate in mediation unless they can be assured that the statements they make in mediation will not be used against them if the case fails to settle and ends up in trial. Confidentiality allows parties to make admissions without fear they will be bound by them at trial, and to disclose information without having their statements used against them. But confidentiality also protects parties who take unreasonable negotiating positions during mediation. Parties deciding to mediate rely both on their freedom to make concessions, as well as their freedom to refuse to settle, without either stance being held against them later.

In the Milhouse case, the insurance company wanted to justify its conduct toward the homeowners seeking payments under their policy by showing that they were making extravagant demands during the mediation. The court decided that it was only fair to allow a party accused of bad faith to introduce evidence that the other side was acting unreasonably. But once the door is opened to allow statements made during mediation into evidence, it seems difficult to limit how wide that opening should remain. What is the scope of a "due process" exception to the generally strict protections for mediation confidentiality? And how would such an exception change parties' willingness to participate in mediation?

From the court opinion, it's difficult to discern on what basis the court concluded that due process demands that a party accused of bad faith must be allowed to introduce otherwise inadmissible evidence to rebut that claim. We don't allow exceptions to other evidentiary privileges, such as attorney-client or spousal privileges, even where the evidence obtainable from that source might determine the outcome of the trial. We don't generally consider due process violated by rules that exclude all kinds of potentially helpful evidence.

The district court's opinion also fails to articulate a "rule" that would provide the necessary certainty for parties to preserve their expectations of confidentiality in mediation. Would it be limited to insurance bad faith cases? Or would anyone be able to claim that their due process rights were being violated if they were not allowed to offer evidence of statements made during mediation? While it's true that mediation confidentiality can sometimes provide a shield for bad behavior, it's difficult to see how we could remove that shield without destroying mediation confidentiality entirely, and that could dissuade many people from using mediation in the first place.