Tuesday, June 30, 2015

Rule 1

The reformers who drafted the Federal Rules of Civil Procedure in the 1930's thought that if we could only get rid of the complexities of ancient pleading practices, and liberalize discovery, cases could be fairly adjudicated on their merits instead of being won or lost on technicalities. Their intent can be gleaned from Rule 1, which provides that the rules "should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding."

To a large extent, the simplified rules we have been living with for so many years must be judged a success, simply because they have stood the test of time. On the other hand, hardly anyone would say that Rule 1 accurately describes the way civil cases are currently processed. We have encrusted the original simple pamphlet enacted in 1938 with so much commentary and interpretation that the rules are on their way to becoming as arcane as the system they were designed to replace. We no longer administer the rules to remove roadblocks to just, speedy and inexpensive determinations of every action and proceeding. Instead we have created so many new roadblocks--mainly the burden of expensive discovery, but also new opportunities for motions--that the whole premise of the federal rules project must be called in question.

The rules ought to be re-written and streamlined again from top to bottom, which would be an endeavor comparable in scope to the original project. Such a revamping should recognize that the vast majority of cases are never going to be adjudicated on the merits. Since most cases are settled, the rules should better incorporate alternative forms of dispute resolution. A simplified set of rules could also eliminate steps that are unnecessary for the vast majority of cases that not going to trial, and could also encourage parties to move toward resolution rather than engaging in wasteful adversarial behavior. At the same time, simplifying the rules could make it possible for more cases to go to trial, because the cost of litigation would present less of an obstacle. (My own radical proposal for an overhaul of the federal rules can be found here.)

One commendable effort to reform the rules has been undertaken by the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System. The task force has compiled a set of principles that still exalt the ideals of Rule 1, and that seek to create more flexibility and proportionality in the civil justice system to allow cases to be resolved in more appropriate ways. Some of these ideas are being incrementally adopted in amendments to the Federal Rules.

I'm not sure I will live long enough, however, to see the kind of wholesale reform that I think is needed. There is too much resistance to change in the fearful legal profession. And there is too much partisanship and paralysis in the political system to allow that kind of change. That means that the only practical way now to create the kind of streamlined dispute resolution process that would live up to the ideals of Rule 1 is to do it at least partially outside the purview of the court system. More on how to do that in subsequent posts.

Monday, June 22, 2015

What works

A mediator I know was explaining his system of taking and cataloging notes from his mediation sessions, to help him learn what was working and not working. He writes down phrases he has used that seem particularly effective, and keeps them on note cards. And he sometimes thumbs through his stack of cards during subsequent mediations to see if he can find something useful.

According to this mediator, impasse does not exist. Instead, when parties get stuck, he prefers to tell them only that the dispute probably will not settle that day, preserving the hope that it will settle at a later time when the parties are ready.

I have also found that the concept of impasse is not particularly helpful. It's too simplistic, for one thing, as there are a wide variety of situations in which negotiations can get bogged down. For example, the parties may need more information before they will move off their positions. Or one or both sides may be refusing to budge for tactical reasons. Or the appropriate decision-maker needs to be consulted before additional concessions can be made. If we use the term "impasse" to describe all these different scenarios, the term doesn't have much meaning. Moreover, the term "impasse" doesn't provide any guidance for moving the negotiations forward. It suggests instead that the process has reached a dead end.

If you have a stack of note cards or some other tools available to show the parties some ways to keep the process moving, you have no reason to suggest to them that they have reached an impasse. Instead, just pull out another card.

Sunday, June 14, 2015

Trade Negotiations

Some thoughts based on my experience with negotiation and mediation in general that may be relevant to the ongoing Congressional fight over passage of fast track authority for the Trans-Pacific Partnership (TPP) trade agreement (which suffered a major setback on Friday): First, there are great virtues in preserving the secrecy of negotiations until the deal is complete. Critics of the TPP have thrown suspicion onto the deal because many of its terms remain shrouded in secrecy. But confidentiality is something we fight to preserve in mediation and other forms of negotiated conflict resolution. One reason is to allow negotiators freedom to make aggressive offers and demands without fear of being second-guessed by their principals until the deal is completed. Another is to try avoid unnecessarily angering those who have to approve the deal before they fully understand the trade-offs involved in the final agreement.

In addition to maintaining confidentiality, it is helpful to the negotiating process for negotiators to remain open-minded. Even if the other side makes what is considered an unacceptable proposal, that should not be a reason to scuttle the negotiation. Instead, it is more constructive to present a counter-proposal, or to present something the other side may view as equally unacceptable as a condition of acceptance of their outrageous proposal.  I always caution parties to settlement negotiations to try not to react too negatively to the other side's insulting offers or demands. Instead they should be treated as invitations to make counter-proposals. I also caution parties not to rush into an evaluation of the merits of the deal. Wait until the negotiators have made the best deal they think they can get before comparing that potential agreement to the alternative of no agreement.

Particularly with something as complicated as a multi-nation trade negotiation covering a wide range of issues, it is important to step back and look at the bigger picture rather than to pick apart provisions that appear harmful to one side. In general, when barriers to trade are reduced, industries that have trouble competing against foreign suppliers are going to face even greater challenges, while industries that are having success in selling abroad are going to have even greater success. The economy may benefit from lower prices for goods made abroad, as well as from greater revenues for increasing exports. The net positive and negative effects  have to be weighed against each other before the deal as a whole can be deemed harmful. This is why every modern president seeks and usually obtains fast-track authority for trade agreements: so Congress can evaluate the package as a whole, rather than pick apart the pieces and risk its destruction.

One final consideration in evaluating almost any kind of negotiated agreement: Let's not overlook the value of peace itself. Parties often focus on the merits of the issue being negotiated, and fail to give sufficient consideration to the cost of failing to resolve the issue. They fail to put a high enough price on the cost of continued conflict. These costs and values are particularly dramatic in the context of international trade agreements. Trade can create greater understanding among the peoples of nations engaged in trade, as well as economic benefits. The alternative to free trade is suspicion, distrust, and even war. The first thing that countries suspend when they resort to war is trade. Thus, trade can be seen as one of the most effective deterrents to war, because when the economies of various countries benefit from trade, they are less likely to resort to war.

In the current round of negotiations over this trade deal, we see critics of the deal failing to consider all of the foregoing. They are suspicious rather than protective of the secrecy of the negotiations. They are unduly focused on the merits of particular parts of the deal, and unable to evaluate it in its entirety. And they fail to put a sufficient value on the virtues of making an agreement per se. I'm not arguing for or against the TPP. What I am saying is that there are good reasons for keeping negotiations secret; there are good reasons for the president to seek fast track authority to allow a vote up or down of the agreement as a whole; and there are a great many issues that must be considered in evaluating the benefits and costs of such a deal, including the value of resolving disputes by agreement instead of by more destructive means.