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.