Wednesday, April 26, 2017

Mediation and Justice

At the ABA Dispute Resolution Conference, I had a chance to hear a panel of experts from around the world talk about different ways of viewing the mediator's role in helping achieve a just result for parties using the process. In China, which has a couple of thousands of years of experience using variants of mediation, the mediator's role in this regard is viewed very differently from the west, where the practice is of relatively recent vintage. There, mediators have the power, even the duty, to make sure that the result accords with legal norms, and can even prescribe a different outcome from one the parties express. In countries such as the UK, Australia, and the US, on the other hand, mediators are usually admonished to avoid interfering with the parties' choices, although there are situations where mediators should consider withdrawing if they feel an unjust outcome is being perpetrated on one of the parties.

What is justice, anyway, and do we know it when we see it? Generally my feeling when I act as a mediator is that the parties are probably in a better position to assess the fairness of their agreement than I am, and therefore I should not be imposing my own views on their process. Mediators do not have possession of all the facts, and should not presume they have any better insight into the "correct" legal result of any given dispute than do the parties themselves or their own attorneys whose job is to compare the results their clients can achieve by settlement to the results they can achieve through litigation. Nor should we assume that the legally mandated result, to the extent we can even discern what that is, is necessarily more fair to the parties than the result they arrive at themselves. One thing we can suggest to parties is that the available alternatives to a negotiated agreement are not necessarily going to produce a more "just" result. All we can do is forecast a range of possible alternative outcomes, and attempt to assign probabilities to them, in the event the parties are unable to reach agreement. We can also suggest that negotiated resolutions serve other valid interests in addition to justice. Peace, for example. Efficiency, for another example.

It's useful to recognize, as these panelists suggested, that the mediator has a powerful role in influencing the outcome, whether we try to do that consciously or not. We should also be concerned that mediated outcomes may sometimes reflect power imbalances between the parties, or be impacted by a party's ignorance of their legal rights. Whether we can or should do anything about those problems is still open to debate.

Thursday, April 20, 2017

Dispute Resolution Protocols

It's not enough to suggest that in resolving disputes, we ought to encourage the use of mediation or negotiation or some other techniques that are preferable to a long, drawn-out lawsuit. Litigants often are not comfortable enough with ADR to resort to it as a first method. Mediation for example has developed a reputation as something parties should not normally resort to until the case has been litigated for a time, to provide the parties enough information to make mediation effective, and to give them enough experience with litigation that they will be motivated to want to avoid more of it. But litigation is such an expensive and destructive process that it seems a shame to require parties to suffer through it. Since they're usually going to come to a negotiated resolution eventually anyway, they ought to start down a more constructive path.

What is needed is a well-thought out dispute resolution process complete enough to serve as an alternative to litigation, instead of relying on litigation as the default method and then initiating mediation or settlement negotiation somewhere in the middle as a break from routine. That process would include a better method of initiating conflict resolution than a summons and complaint (I have suggested developing a new form of notice of dispute, but a demand letter can also serve the purpose), a cooperative exchange of information less cumbersome than traditional discovery, and a series of meetings to reach agreements. The process should allow vigorous advocacy, but should be cooperative rather than adversarial, problem-solving rather than destructive, and encouraging of agreement rather than encouraging of more disputes.

Collaborative lawyers have already figured out how to conduct such a process from start to finish, but that process is mainly confined to the family law field, and it is not clear that other civil lawyers would take to it. The distinguishing feature of collaborative law is the participation agreement, which generally requires the attorneys to withdraw from the case if the parties are not able to reach agreement, something that other civil lawyers are loath to do.

At the ABA dispute resolution conference, I attended two presentations that presented viable alternative systems. One was by a task force that has been working for several years on developing a process they call Early Dispute Resolution. They identified six steps in the process:

     1-Preliminaries: creating incentives and approaching the process in good faith

     2-Early Case Assessment: setting deadlines to collect documents and witnesses

     3-Information Exchange: obtaining needed documents and witness interviews from the other side

     4-Informed Judgment: evaluating the strengths and weaknesses of the case

     5-Expert advice:obtaining expert assistance when necessary, preferably jointly.

     6-Negotiation or mediation: meeting to attempt to reach resolution

Members of the task force stressed the advantages of attempting to reach settlement in about 60 days, as opposed to the time and expense of the typical litigation timeframe, but speed is not the only selling point of their suggested protocol. Such a method should also reduce the stress and unpleasantness of typical adversarial litigation, help preserve relationships between parties who might have repeated conflicts, and lead to more satisfactory outcomes than those that are sometimes only justified as a way of putting destructive litigation to an end.

Lainey Feingold offered a second dispute resolution protocol she calls Structured Negotiation, which is also the title of her book. Her method was perfected in the resolution of disability rights cases, but should be applicable elsewhere. Instead of starting lawsuits on behalf of blind or discriminated-against clients to obtain redress under civil rights statutes or the ADA, her organization attempts to reach agreements that can obtain the same relief her clients would otherwise be able to obtain, at less cost and more satisfaction to the companies whose practices they are trying to reform. The process includes the following steps:

      1-Opening Letter- not a typical demand letter, but an invitation to participate in a dispute resolution process

     2-Ground Rules- a structured negotiation agreement that includes confidentiality provisions, a tolling agreement, and a provision for plaintiffs' attorneys fees if the negotiation is successful

     3-Sharing Information-a mutual exchange of documents and other information

     4-Expertise-Retention of a joint expert if needed

     5-Meetings-A series of discussions between the parties, possibly with the aid of a mediator

     6-Written Agreement- Commitments to remedy the deficiencies and the payment of damages and attorneys' fees

Feingold stressed the importance of patience and persistence in this process, concepts that are very familiar to mediators, as well as the importance of adopting a cooperative problem-solving mindset, instead of an adversarial approach. She did not sell this approach so much on speed, as the Task Force did, and in fact recognized that it can often take many months even to bring their adversary to the table without the aid of sanctions or other court processes.

As one might expect, there is a lot of overlap between the suggested approaches. It is exciting to watch the development of full-blown, start to finish procedures that can be used as a viable alternative to traditional litigation. There probably should never be hardbound "rules" to guide such processes--the idea of rules and sanctions is antithetical to a cooperative approach to dispute resolution--but there is a crying need to promote the more widespread use and familiarity of tools that can guide dispute resolution in a wide variety of contexts.