Monday, November 30, 2015

Spotlight

Confidentiality agreements often serve the short-term interests of the parties to a particular dispute: An enterprise accused of wrongdoing has a strong interest in keeping its alleged wrongful actions secret, both to protect its reputation and to dissuade others from suing. At the same time, individuals bringing such accusations have an incentive to agree to requests for secrecy, which are often demanded in exchange for settlement payments.

In the new movie Spotlight, in which a motion to unseal court records plays a central part, the practice of entering into confidential settlement agreements providing a small amount of compensation to victims of sexual abuse by Catholic priests, is portrayed as a shameful means of allowing the Church to cover up crimes for decades and keep predators at large. The legal system's complicity in the sort of confidentiality that allows evidence to be suppressed, criminals to be spirited away, and victims to remain in the shadows, is portrayed as an obstacle that must be overcome in order to allow justice and healing for abuse victims.

It is important, however, to distinguish the kinds of protective orders and confidentiality agreements that had to be defeated in the Church abuse cases, from the need to conduct settlement negotiations in private, without fear that admissions or offers might be used against parties in that particular case.

I have been involved in efforts to protect the confidentiality of settlement negotiations--mediation confidentiality in particular. Confidentiality is essential to the practice of mediation and to settlement negotiations in general, as the evidentiary bar against the admissibility of settlement negotiations encourages parties to speak candidly without fear that their offers and admissions may be used against them in later court proceedings. Without the shield of confidentiality, parties might be reluctant to engage in spirited settlement negotiations, and cases might be less likely to resolve in a consensual manner. Without the protection of confidentiality, parties are more likely to be forced into adversarial confrontation, and less likely to find a cooperative means of obtaining resolution. Without an evidentiary rule against the admissibility of settlement negotiations, parties are more likely to move back toward needlessly destructive litigation.

While the confidentiality of settlement negotiations generally deserves strong protection, courts must still be mindful of the over-use of protective orders and other efforts to hide wrongdoing in individual cases from public view. This is where the courts have to balance the interests of the public, including the interests of other potential victims of wrongdoing, against the desires of the parties in a particular case to keep facts out of the public view. Confidentiality clauses in settlement agreements are even more problematical than the use of protective orders, because usually judges have no opportunity to oversee their use, and parties are often too willing to agree to them. The situation in Spotlight illustrates one scenario where the routine use of confidentiality clauses may not have served any of the parties' long term interests. Parties and their attorneys should therefore be mindful of the potential over-use of protective orders and settlement confidentiality provisions, which can create traps even for the parties in a particular case, and which may also harm the public interest.


Saturday, November 14, 2015

SCMA fall conference recap

Congratulations to outgoing president Robyn Weinstein, incoming president Floyd Siegal, conference chair Hass Sadeghi, executive director Anne Sawyer, and all the other volunteers who helped create the Southern California Mediation Association's successful fall conference last weekend. The conference's theme, Conflict Revolution, made clear that our organization is moving well beyond the goal of helping people learn to mediate litigated disputes. Our goal is to change the world!

Ken Cloke
This goal was emphasized not only in panels such as the one described in my previous post that addressed new roles for mediators and mediation, but was also addressed in panels on critical race theory, LGBT rights, and other timely topics. Peter Robinson kicked off the conference with what amounted to a synopsis of an entire course on apology and forgiveness. And Ken Cloke closed the event by expressing the view that global problems from civil war to climate change can only be solved by the application of principles learned by mediators.

It's been my privilege to serve on SCMA's board for the past five years, including as president last year. It's a committed group of idealists filled with positive energy and intent on changing the world, and I have gained a lot from knowing these people.

Sunday, November 8, 2015

Urban Projects

Streetsblog
There is a half-finished Target store in my neighborhood that stands as a perfect metaphor for the problems with using litigation as a means of resolving developers' and the community's interests in urban projects. With construction halted because of claimed height violations, the unfinished building has been left in limbo. The community now has to live with something that is ugly; that is enormously wasteful; and that has been sitting there unfinished for a long time. Its continued unresolved status satisfies neither those opposed nor those in favor of the project.

I used that metaphor while introducing one of the workshops at the SCMA fall conference yesterday, a workshop on urban projects organized by Noah Stein. The panel brought together developers, community group leaders and an official with the MTA to talk about how mediation might be introduced into the planning and approval process to alleviate the adversarial nature of the current system. It was pointed out that zoning codes are so complex that variances are almost invariably needed, leaving developers at the mercy of changing political winds, as well as at risk of penalties for violations. There was also general agreement that the current CEQA process, which dates back to the 1970's, is in need of reform, if not complete overhaul. It leaves developers and planners after all of the environmental reviews and comments, still at the mercy of one opponent of the project willing to resort to litigation challenging the project's approval on the grounds that some negative environmental impact of the project was not fully considered.

So perhaps structural changes in the law are needed before we can design a more collaborative rather than adversarial type of planning and approval process. Still there was general agreement that even within the current system it is important for planners and developers to work with community groups and property owners early in the design process, so as to gain the community's trust, and to help create projects that will be more beneficial to all of the various competing interests. While it might be too late effectively to mediate disputes among project proponents and opponents after litigation has commenced, there does seem to be a place earlier in the design and planning process for the kinds of facilitated dialogues that mediators are trained to conduct.

Tuesday, November 3, 2015

Bridge of Spies

The new Cold War thriller Bridge of Spies, based on the true story of the prisoner exchange for captured U2 pilot Francis Gary Powers, shows an attorney living up to the highest standards of advocacy as well as negotiating ability. The movie's lawyer-hero, James Donovan (played by Tom Hanks) is first seen as a typical insurance company lawyer making clever legal arguments about whether an accident involving five motorcyclists should be considered a single "incident." Even when doing that, however, Donovan is able to impress by tying those arguments to a higher purpose.

When Donovan is asked to defend accused Russian spy Rudolf Abel, he takes his ethical responsibilities, and his devotion to the Constitution and to his client's interests, as seriously as any lawyer would wish to perform them, and performs to the highest professional standards, despite pressure to compromise those standards for the sake of gaining an advantage in the Cold War game of espionage. Compare James Donovan to the fictional Atticus Finch, an idealistic role model who has served as an inspiration to many lawyers. Both took on hopeless cases, and both strove to uphold the rights of a reviled defendant. But it must be said that although Finch showed courage in exposing the community's racism, his shaming of the jury may not have served his client all that well in the end. We should probably admire the real-life hero Donovan even more, because he took on the defense of a client who was probably not so innocent, and came up with the winning strategy that saved his client's life.

At the same time, like Atticus Finch, Donovan reminds the community of the Constitutional ideals they are supposed to stand for.  At home, Donovan has to endure the disapproval of his neighbors for taking on the defense of a hated spy. But all it takes is a tour of postwar Berlin with our hero to appreciate his viewpoint that upholding the rule of law is the only thing protecting us from descending into the fear, crime and oppression prevalent on the other side of the Iron Curtain.

Not only does Donovan turn out to be a highly skilled trial lawyer, he also shows himself as an effective negotiator. He does that by knowing both the limits and the extent of leverage he had over his adversaries. Donovan also knew his client well enough to understand his value to the Russians, and had built up the kind of trust with his client that enabled him to achieve even greater success in the end.

All in all, a perfect combination of street smarts and idealism. And a perfect combination of knowing what it takes to win, and what it takes to negotiate a mutually beneficial result with one's adversary. Truly an inspiring story.