The not so secret opinion among mediators is that attorneys make settlement more difficult. Just as lawyers are heard to say that "litigation would be great if it just weren't for the clients" (a "problem" only class action plaintiffs' lawyers have actually resolved), mediators tend to say "mediation would great if it weren't for the lawyers."
Esteeming the rule of law in America as I do (especially in the recent era of its greatest peril) I have never seen lawyers as a problem in facilitating settlement of the lawsuits they have been eating, drinking, sleeping and, dating for years longer than I've spent reading their briefs and engaging in some pre-mediation telephone discussions.
I can't say lawyers are a problem because: (1) they're my job; and, (2) they're "my people" in the "tribal" sense. A few bad apples aside, lawyers are among the hardest working, most ethical, creative, multi-talented professionals I know. And they are pretty much solely responsible for fighting the battle, on every common weekday, to preserve the rule of law as a bulwark against tyranny on the right and anarchy on the left.
Let's start with this particularly widespread canard from the article:
Attorneys may delay the settlement of a dispute through mediation for financial reasons. For example, the payment of professional fees on the basis of hours worked could motivate the attorney to delay the settlement of the dispute to increase the number of hours billed to the client (citations omitted). Such non financial reasons as a desire to build or preserve a reputation for “hardball negotiating” in highly publicized cases could also motivate an attorney to delay settlement of the dispute [which the authors don't mention often results in a far better outcome for the client]. In addition, attorneys’ (or their clients’) commitment to or belief in their case based on questions of justice or other principles [which are worth, in my opinion, greater attention that purely monetary outcomes] could also delay settlement until “defending the principle becomes too costly” (citation omitted). Finally, attorneys may wish to justify both their role and their fees with unnecessary interactions./1
Are we mendacious, self-serving, parasites of the "justice system," feathering our own comfortable nests as we attempt to preserve the "outdated" notion that the justice system is capable of delivering justice? I don't believe so, but let's not get all anecdotal about these questions when we have cold, hard statistics within reach. What were the results of this study on the way in which attorneys might "get in the way of" a successful mediation?
Here's the bottom line assessment (please read the article yourself to draw your own conclusions).
The empirical data we collected in this study indicate that the presence of an attorney in a mediation does not significantly affect the settlement rate, the time needed to reach an agreement, the perceived fairness of the process, the parties’ level of satisfaction with the agreement, or the parties’ level of trust that the agreement will be honored. These results indicate that attorneys have much less impact than is claimed by those mediators who do not welcome their involvement in the mediation process.
Nevertheless, the results also demonstrate that the presence of an attorney does affect mediation outcomes in at least two ways: by reducing the parties’ level of satisfaction with the mediator’s performance and by reducing the level of reconciliation between parties.
So the Myth Busters of this study conclude that attorneys:
don't "significantly affect the settlement rate" /2
don't significantly affect "the perceived fairness of the process";
don't significantly affect "the parties' level of satisfaction with the agreement; and,
don't significantly affect the "parties' level of trust that the agreement will be honored."
This is the subjective viewpoint of the litigants, mind you, in a dynamic where the mediator often openly attributes the success of the mediation to the clients' attorney - an observation which is more deeply true than most mediators would care to admit with all their white horse hi-ho silver, magic bullet off-to the-rescue enthusiasm.
What did litigants report to the authors of this article? They indicated that attorneys adversely affected mediation outcomes in two ways: (1) they reduced the parties' "level of satisfaction with the mediator's performance"; and, (2) they "reduced the level of reconciliation between the parties."
Of all of the purported effects of attorneys' presence at mediation - without whom, it must be noted, the parties would not likely be induced to sit down and mediate at all -- the only significant perceived difference is the failure of the mediation process to reconcile the parties - something in which the legal system has little to no interest.
Please read the article for proposed solutions to the reconciliation issue. As to the remainder of the study's findings, I have this to say:
whenever two or more people are gathered together, the dynamics of the group more profoundly affect the outcome than do the contributions of any individual member of the group. Our "reality," especially as it appears in a group setting, is "co-created." See the New York Times must-read article on the Psychology of Terrorism and Retail Marketing at Google Books (the latter noting that because people live in a social world which is co-created in social interaction with others . . . . [they] can be thought of as both products and producers of the social world." Id. at 218.)
try as you may, you will never be able to untangle the threads that create the intricate tapestry of a settlement; every member contributes something invaluable without which the precise result could not possibly have been achieved.
who is therefore responsible for the good and who responsible for the purportedly bad results of mediation? That's easy: EVERYONE IS.
That being the case, we are all responsible for our outcomes - whether our contribution is "negative," i.e., resisting settlement, for instance, or "positive," i.e., problem solving the reasons given by Mr. Negative that the case simply can't settle on terms acceptable to all. Remember your University philosophy class? Thesis, Antithesis, Synthesis. We need people willing to state the negative to problem solve it positively. The relationships cause the outcome, not one member of a group unless that member is a tyrant with loyal troops at his command.
If you'll allow me a literary reference that justifies my own collegiate career and says far more eloquently than I ever could why we're all accountable, I first give you one of my favorite authors, Paul Auster (who you may remember as the screenwriter of the movie Smoke).
The world can never be assumed to exist. It comes into being only in the act of moving towards it. Ese est percipii. Nothing can be taken for granted: we do not find ourselves in the midst of an already established world, we do not, as if by preordained birthright, automatically take possession of our surroundings. Each moment,each thing, must be earned, wrested away from the confusion of inert matter, by a steadiness of gaze, a purity of perception so intense that the effort, in itself, takes on the value of a religious act. The slate has been wiped clean. It is up to [us] to write [our] own book.Paul Auster,The Decisive MomentfromThe Art of Hunger.
The second excerpt I will leave for your thoughtful consideration is by the greatest scholar of comparative religions to ever inhabit the planet - Joseph Campbell (skip the intro with the new age music).
Schopenhauer, in his splendid essay called "On an Apparent Intention in the Fate of the Individual," points out that when you reach an advanced age and look back over your lifetime, it can seem to have had a consistent order and plan, as though composed by some novelist. Events that when they occurred had seemed accidental and of little moment turn out to have been indispensable factors in the composition of a consistent plot. So who composed that plot? Schopenhauer suggests that just as your dreams are composed by an aspect of yourself of which your consciousness is unaware, so, too, your whole life is composed by the will within you. And just as people whom you will have met apparently by mere chance became leading agents in the structuring of your life, so, too, will you have served unknowingly as an agent, giving meaning to the lives of others, The whole thing gears together like one big symphony, with everything unconsciously structuring everything else. And Schopenhauer concludes that it is as though our lives were the features of the one great dream of a single dreamer in which all the dream characters dream, too; so that everything links to everything else, moved by the one will to life which is the universal will in nature.
It’s a magnificent idea – an idea that appears in India in the mythic image of the Net of Indra, which is a net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems. Everything arises in mutual relation to everything else, so you can’t blame anybody for anything. It is even as though there were a single intention behind it all, which always makes some kind of sense, though none of us knows what the sense might be, or has lived the life that he quite intended.
Lawyers, mediators, clients, experts, consultants, legal assistants, and, yes, even your spouse with whom you consulted before today's mediation, every one of them is part of the "net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems [so that] [e]verything arises in mutual relation to everything else, so you can't blame anybody for anything" and, by the way, we can't credit credit nor bear all the responsibility for anything. We are all capable. We are all accountable. And we all contribute something to the whole.
So we can stop pretending to be better than we are now. We can all put down the burden and shame of our own entirely human fallibility; the myth that we ever do anything without the contribution of others; and, the pretense that we don't behave as badly, or as well, as other people do. We're part of the team. We're in it together. Isn't that good news for the New Year?
And to give you a treat from having gotten this far, a scene that is all about seeing, from Paul Auster's Smoke.
1/ I'd be interested, of course, in what the authors consider to be "unnecessary interactions."
2/ This is a particularly interesting finding since mediators have also been found not to improve the settlement rate but only greater party satisfaction in several studies.
My own personal 200-year present spans the life of my maternal grandparents who were nine years old in 1909, and that of my step-children’s children, who (assuming they procreate on a reasonable schedule) should be ninety-five'ish in 2109.
My imagined grandchildren,  born sometime between today and 2014, will not be strangers to any of my grandfather’s technologies. Despite the advent of compact fluorescent light bulbs, the early lives of my step-children's children will likely pass under the glow of the same incandescent lights that brightened granddad’s one-room school house. They will be transported to school in cars with internal combustion engines, learn the same alphabet from the same cardboard and paper books (as well as from the "e" variety)  and play many of the same games he did – hop scotch, jump rope and ring-around the rosy.
Change will etch itself into the lives of my grandchildren as surely as it did my own, my parents' and my grandparents'. Hybrids will give way to fully electric (and perhaps hemp-powered) vehicles (effective or defective) and though electricity will continue to be generated by hydroelectric dams, wind farms and nuclear power plants, some new and unimaginable source of power will surely push back the nights of my grand children's children. 
Law, politics, society and culture also exist in the 200-year present of conflict resolution. In my personal 200-year span, the law seems to have changed the most profoundly. Was it the law first and culture later? Or do they weave our future together?
The first U.S. woman lawyer, Myra Bradwell, was admitted to practice a mere ten years before my grandmother was born. Mrs. Bradwell’s legal career was the subject of one of the sorriest U.S. Supreme Court decisions ever handed down, in which the Court opined,
The civil law as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say the identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea for a woman adopting a distinct and independent career from that of her husband … for these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of any abridging any of the privileges and immunities of cities of the United States.
My grandparents', parents' and step-children's 20th Century was dominated by genocide on a scale and a technological precision unimaginable to our earlier forebears. Mid-century brought with it the threat of nuclear annihilation but also liberated millions of people enslaved by colonialism. We cured polio in my own lifetime with both "dead" and "live" vaccines (neither of them counterfeit) - a singular moment in scientific history during which no one took ownership of the cure and no one tried to stop others from seeking another, a problem Patently O addressed this week in Reverse Payments.
Whether god or satan, heaven or hell, war or peace "won" the twentieth century, the world's greatest peace-making body was created during it -- the United Nations. And here in the U.S., the “living room war,” Viet Nam, coupled with the largest generation of adolescents ever to grace American society, ended the forcible induction of young men into the military. 
With the recent discovery of our earliest ancestor, Ardi, our biological and social lives exist in a 4.4 million year now. Our physical bodies “evolve” in the womb along the same lines as did our species and, once born, we carry with us our earliest organs.  Most critical of these to conflict escalation and avoidance is our “fight-flight” mechanism – the amygdala. And the most pertinent biological agents to promote the collaborative resolution of conflict are our “mirror neurons” which
provide a powerful biological foundation for the evolution of culture . . . absorb[ing] it directly, with each generation teaching the next by social sharing, imitation and observation.
How we’ve manage to survive despite our tendency to misread one another’s actions, intentions and emotions, is often the subject of those who advise us how to choose and move juries -- here -- Anne Reed at Deliberations (explaining why "they" don't see things like "we" do here); and, the Jury Room (explaining why pain hurts more intensely when we believe it's been intentionally inflicted here).
The Most Effective Conflict Resolution Technology is the Oldest
One of our true original gangsters, Al Capone, is reported to have said that “you can get much further with a kind word and a gun than you can with a kind word alone” and one of our greatest Presidents, Theodore Roosevelt said “speak softly and carry a big stick.”
As Robert Wright, author of The Moral Animal explained, had Tit for Tat been tossed into the game with 50 steadfast non-cooperators, there would have been a 49-way tie for first place. But none of the players' programs failed to cooperate in at least some circumstances, leaving Tit for Tat the clear victor. According to Wright, humans, like the programs in Axelrod's competition, are evolutionarily “designed” to cooperate under at least some circumstances. The engine and benefit of cooperation is present in our neurochemistry. When scientists observed the brain activity of volunteers playing the Prisoner’s Dilemma game, for instance, they found that the participants' “reward circuits” were activated and their impulsive "me first" circuits inhibited when they cooperated. Cooperation, retaliation, forgiveness and a return to cooperation. Tit for Tat.
We don't "dis" lawyers here at the Negotiation Blog. We simply remind ourselves that our primary purpose is the promotion of justice, with a stable societal order closely behind. Most people don't understand, for instance, that Shakespeare's famous the first thing we do, let's kill all the lawyerswas not an insult. In King Henry IV, Act IV, Scene II, Shakespeare's sentiment was not his own, but that of a revolutionary who wished to destroy the social order.
The historic "present" of laws and lawyers is in the thousands, not simply the hundreds, of years. Hammurabi (make of his choice for the memorialization of his laws what you will) was the sixth king of Babylon, remembered for creating -- in his own name (and likeness?) - the first written and systematic legal code.
For the wrongful killing of another, for instance, the victim’s kin were paid according to the social status of the deceased party. Thus the ‘man price’ for killing a peasant was 200 shillings and that for a nobleman 1200 shillings. Payments were not, however, tailored to the loss, but fixed according to types of affront, a distinction we continue to make when we punish intentional torts more severely than negligent ones. >
Lawyers, litigators and trial lawyers are too often demonized by the ADR community as if you could get someone to sit down to negotiate without first pointing the gun of litigation at their heads; I salute you (and myself, for that matter!) for bringing us all to the bargaining table. See Steve Mehta's recent post at Mediation Matters, Factors When Peace Makes Sense for a note that touches upon the symbiotic relationship between litigation and mediation, litigators and mediators.
I shouldn't cite single legal blogs twice, but I cannot resist this quote of Scott Greenfield's on another pundit's view of the future lawyers have in store for them, i.e.,
shucking oysters for a living if we don't accept a future of lawyers being piece workers in factories, sending our work off to Bangalore in pdf files and complementing people on their choice of forms at Legal Zoom.
Which came first? Public civil trials or private arbitrations? You’ll be surprised, I’ll wager, to hear that arbitration was one of the earliest forms of dispute resolution, practiced by the juris consults of the Roman Empire. Roman arbitration predates the adversarial system of common law by more than a thousand years. 
Ah, the glory of Rome! The juris consulti were (like too many mediators) amateurs who dabbled in dispute resolution, raising the question whether they (and we) should be certified or regulated as Diane Levin asks at The Mediation Channel this week. The Roman hobbyists gave legal opinions (responsa) to all comers (a practice known as publice respondere). They also served the needs of Roman judges and governors would routinely consult with advisory panels of jurisconsults before rendering decisions. Thus, the Romans – god bless them! - were the first to have a class of people who spent their days thinking about legal problems (an activity some readers will recall Ralph Nader calling "mental gymnastics in an iron cage").
It was Buckminster Fuller who famously opined that the "significant problems we face cannot be solved at the same level of thinking we were at when we created them." If you keep this aphorism in mind for the remainder of this post, you'll likely have some extraordinarily innovative comments to make in the comment section below.
As the Law Guru wiki reminds us, we can trace the adversarial system to the "medieval mode of trial by combat, in which some litigants were allowed a champion to represent them." We owe our present day adversarialism, however, to the common law's use of the jury - the power of argumentation replacing the power of the sword.
The Act abolishing the infamous Star Chamber in 1641 also granted every "freeman" the right to trial by "lawful judgment of his peers" or by the "law of the land" before the Crown could "take or imprison" him or "disseis[e] [him] of his freehold or liberties, or free customs." Nor could he any longer be "outlawed or exciled or otherwise destroyed." Nor could the King "pass upon him or condemn him."
English colonies like our own adopted the jury trial system and we, of course, enshrined that system in the Fifth, Sixth, and Seventh Amendments. Whether this 17th century dispute resolution technology can be fine-tuned to keep abreast of 21st century dispute creation technology (particularly in the quickly moving area of intellectual property) remains one of the pressing questions of legal and ADR policy and practice, particularly in a week in which a Superior Court verbally punished the lawyers before it for filing The Most Oppressive Motion Ever Presented (see the Laconic Law Blog). The motion?
Defendants['] . . . motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication. Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded. And the moving papers concluded with a request for judicial notice of 174 pages. All told, defendants’ moving papers were 1056 pages.
Mediator, author and activist, Ken Cloke, suggests that interest-based resolutions to conflict must replace power and rights based resolutions if we expect to create a future in which justice prevails. As Ken wrote in Conflict Revolution:
Approaching evil and injustice from an interest-based perspective means listening to the deeper truths that gave rise to them, extending compassion even to those who were responsible for evils or injustices, and seeking not merely to replace one evil or injustice with another, but to reduce their attractiveness by designing outcomes, processes, and relationships that encourage adversaries to work collaboratively to satisfy their interests.
Evil and injustice can therefore be considered byproducts of reliance on power or rights, and failures or refusals to learn and evolve.
All political systems generate chronic conflicts that reveal their internal weaknesses, external pressures, and demands for evolutionary change. Power- and rights-based systems are adversarial and unstable, and therefore avoid, deny, resist, and defend themselves against change. As a result, they suppress conflicts or treat them as purely interpersonal, leaving insiders less informed and able to adapt, and outsiders feeling they were treated unjustly and contemplating evil in response.
As pressures to change increase, these systems must either adapt, or turn reactionary and take a punitive, retaliatory attitude toward those seeking to promote change, delaying their own evolution. Only interest-based systems are fully able to seek out their weaknesses, proactively evolve, transform conflicts into sources of learning, and celebrate those who brought them to their attention.
These are the words I leave with the readers of Blawg Review #234 because they are the ones that informed my personal and professional transformation from a legal career based on rights and remedies to one based upon interests and consensus.
Whatever my own personal 200-year present was, is and will be, it is pointed in the direction of peace with justice, with an enormous and probably unwarranted optimism best expressed by the man after whom my law school was named: Martin Luther King, Jr. - the arc of history is long, but it bends toward justice.
Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues. Next week's host, Counsel to Counsel, will devote its round-up of the week's best legal posts to the Great Recession.
 Earlier scientific theory posited that each human embryo (see Embryo Mix-Up at the Proud Parenting Blog) passes through a progression of abbreviated stages that resemble the main evolutionary stages of its ancestors, i.e., that the fertilized egg starts as a single cell (just like our first living evolutionary ancestor); as the egg repeatedly divides it develops into an embryo with a segmented arrangement (the “worm” stage); these segments develop into vertebrae, muscles and something that sort of looks like gills (the “fish” stage); limb buds develop with paddle-like hands and feet, and there appears to be a “tail” (the “amphibian” stage); and, by the eighth week of development, most organs are nearly complete, the limbs develop fingers and toes, and the “tail” disappears (the human stage). It turns out that this one-to-one correlation was too simplistic, but it remains safe to say that our biological development still passes through several stages that “recapitulate” the evolution of our species.
 The amygdala is a region of the brain that permits the formation and storage of memories associated with emotional events. It permits us to “read” the emotional responses of our fellows and is thought to facilitated our ability to form relationships and live and work in groups. It is also the source of our “fight or flight” response to danger.
Studies show that some mirror neurons fire when a person reaches for a glass or watches someone else reach for a glass; others fire when the person puts the glass down and still others fire when the person reaches for a toothbrush and so on. They respond when someone kicks a ball, sees a ball being kicked, hears a ball being kicked and says or hears the word "kick."
“When you see me perform an action - such as picking up a baseball - you automatically simulate the action in your own brain,” said Dr. Marco Iacoboni, a neuroscientist at the University of California, Los Angeles, who studies mirror neurons. ”Circuits in your brain, which we do not yet entirely understand, inhibit you from moving while you simulate,” he said. ”But you understand my action because you have in your brain a template for that action based on your own movements. “
 Looking toward the future, the Neuroethics and the Law Blog predicts that in the “experiential future, we will have better technologies to measure physical pain, pain relief, and emotional distress. These technologies should not only change tort law and related compensation schemes but should also change our assessments of criminal blameworthiness and punishment severity” here.
The adversarial system of medical negligence fails to satisfy the main aims of tort law, those being equitable compensation of plaintiffs, correction of mistakes and deterrence of negligence. Instead doctors experience litigation as a punishment and, in order to avoid exposure to the system, have resorted not to corrective or educational measures but to defensive medicine, a practice which the evidence indicates both decreases patient autonomy and increases iatrogenic injury.
(Iatrogenic, by the way, is a fancy term for “we have know idea whatsoever what the source of this ailment is). Chris is looking for comments so run on over there if you’ve been thinking about medical malpractice litigation during the marathon American health care debates.
Regulations that govern certified mediators in Virginia would have more teeth under changes now under consideration.
Among the changes is a provision that would allow the Supreme Court’s Division of Dispute Resolution Services to immediately suspend mediator certification if a mediator refused to respond to concerns based on a complaint about improper behavior.
The DRS has extended the deadline for comments to the proposed rule changes to Oct. 30.
Documents marked with the proposed changes are available on the Web site for Virginia’s Judicial System (www. courts.state.va.us).
A member of the ethics committee convened to recommend changes said the changes will allow the DRS to have a more immediate response when there are credible allegations of ethics concerns about a mediator. Lawrie Parker, director of the Piedmont Dispute Resolution Center in Warrenton, said the proposed standards would allow action by DRS in certain cases without having to convene the complaint review committee for guidance.
From preparation to closing, some of L.A.'s most prominent mediators reveal the secrets of getting the best deal available for your clients.
Read former CAALA Trial Lawyer of the year Sandy Gage's article on Getting the Best Results in Mediation and AIM founder, mediator and trainer Lee Jay Berman'sTwelve Ways to Make Your Mediator Work Harder for You.
My ADR Services, Inc. colleagues Jan Schau, Michael Diliberto, Joan Kessler (the brains behind the entire issue!) and Leonard Levy round out the issue with Telling Lies, Telling Secrets (Schau); Opening Offers: Who's on First (Diliberto); The Defense Reveals Mistakes that Could Cost Your Client Money; and Kessler's incisive executive summary of them all.
Oh, yes, I'm here too with one of my mediation narratives, We Tell Ourselves Stories in Order to Live.
The online Advocate can be read like a magazine, complete with turning pages. It's a pretty cool online journal format in addition to being a great contribution to the growing literature on best mediation practices.
Dive in! The water is warm and the natives are friendly.
Because the vast majority of my litigation and mediation clients were and are corporate entities or highly successful entrepreneurs, executives or managers, I was and am rarely in a position to coerce a client into doing something it didn't want to do.
As a mediator, however, I hear stories.
Some of the stories I hear are told by disgruntled individuals who feel as if they were coerced by their own counsel into settling their litigation during a mediation. Others have reported that they felt ganged up on by their attorney and the mediator. Some have complained that they were unduly pressured to stay in the mediation process long after they were too tired or hungry to think clearly.
These stories are troubling to any mediator who values the good reputation of the mediation process itself. They should also disturb attorney mediation advocates.
Is it below the standard of care for an attorney to subtly (or not so subtly) pressure his or her client to settle litigation? Under certain circumstances, I think it is. Here's the bad news. If a litigant is unhappy with the outcome of mediation, he or she is far more likely to bring a complaint (or lawsuit) against his or her own attorney.
In a 2006 article in the Ohio Journal on Dispute ResolutionTAKE IT OR LEAVE IT. LUMP IT OR GRIEVE IT: DESIGNING MEDIATOR COMPLAINT SYSTEMS THAT PROTECT MEDIATORS, UNHAPPY PARTIES, ATTORNEYS, COURTS, THE PROCESS, AND THE FIELDPaula M. Young, Assistant Professor at the Appalachian School of Law cites Mel Rubin on "settle and sue" cases which Rubin suggests are on the rise among clients unhappy with the outcome of a mediation. Rubin "also suggests that if a client is unhappy with the outcome of mediation, he or she is more likely to sue his or her attorney for malpractice. Id.
What might actionable attorney mediation malpractice look like? Young cites the example of one woman who told the following story:
I refused to sign several times. My attorney then began yelling at me to “shut-up and sign the damn thing” I wasn't allowed to leave until it was signed . . . . The words, “NO I can't sign this,” fell on deaf ears. I was so unfamiliar with the process of it all and what it meant and what the outcome entailed.
Young has a systemic solution for problems like these: procedural "justice" during the mediation itself and grievance procedures for dissatisfied litigants. She writes:
To the extent the procedural justice research indicates that parties who perceive they have received procedural justice in mediation also perceive that the negotiated outcome in mediation is fair, we would expect that these parties are not likely to later sue their attorneys for malpractice. Even when the client has little trust in his or her attorney, a mediation process that enhances procedural justice allows the party to assess directly whether he or she feels exploited or mistreated in the process.
Even if the mediation process itself lacks procedural justice and the client accordingly remains dissatisfied and suspicious, a well-designed grievance system, emphasizing procedural justice from the client's perspective, may give the client the reassurances he or she needs. A client who suspects collusion between his or her lawyer and the neutral could seek the informed opinion of the regulatory body, without ever having to file a legal malpractice law suit.
Remember that we tend to stumble and fail when we're Hungry, Angry, Lonely (marginalized) or Tired (HALT) and so do our clients. When I notice litigants flagging or attorneys losing their tempers, I suggest a walk around the block, a nutrition break (not eating more cookies) and, in extreme cases (someone becomes ill during the course of the session) reconvening at a later date. Remember how powerful and all-knowing you appear to be to your clients and what a strange and frightening land the "justice system" is for those who are encountering it for the first time.
There's no better defense to professional negligence actions that the quality of your relationship with your clients. Keep channels of communication open. Demand that your adversary and the mediator treat your client with respect. At the first sign that a mediator is exercising undue influence on your client, say something, just as you would if opposing counsel were harassing your witness at a deposition. Follow these dictates and you'll rarely if ever be worrying about calling your insurance carrier.
The subjects covered in this issue include the chaotic state of federal mediation confidentiality protections [by Phyllis G. Pollack]; the dangers of [mediator] class action fairness declarations [by Jay McCauley and Jeff Kichaven] and the difficulties inherent in applying federal conflict of interest laws developed with attorney advocates in mind to attorney neutrals and their law firms [by Robert J. Rose].
Though these issues are of critical importance to daily practice in our federal courts, very few advocates are aware that these problems exist, let alone how they might be fixed. The Resolver’s first mission is to make available to FBA members the highest level of scholarship and best practices in federal mediation and arbitration practice. The second—and perhaps the most important— mission of The Resolver, is to commence a robust and sophisticated conversation among federal lawyers, on the one hand, and district and circuit court mediators on the other, about the means by which we can more efficiently, effectively, and durably help our clients resolve their litigated disputes.
(from the Letter from the Editor by yours truly)
You'll also want to read the Message from the [ADR] Section Chair, Simeon H. Baum, whose energetic leadership is making the ADR Section of the Federal Bar Association a dynamic new force in the ADR field.
As Baum's message notes, we have great things in store for the work of the FBA's ADR Section. Simeon writes:
For those of you who are interested in what you encounter in The Resolver, we welcome you to participate actively in the FBA. Become a liaison to the section on behalf of your local chapter. If you have thoughts on pending or possible legislation that affects the dispute resolution field . . . please feel free to share them with us—publish your piece in the next issue of The Resolver.
Or, reach out to the section and your chapter and look to put your cause at the forefront of the FBA’s legislative agenda. We can take advantage of Bruce Moyer and the FBA Governmental Relations Council to cultivate the best in the ADR field through national legislation, where appropriate.
If you have a CLE program on ADR that you would like to promote, please let us know through the ADR Section, and the section can collaborate with your local chapter [Board member Jeff Kichaven is the CLE Chair this year and you can reach him at the link above].
Along these lines, the section is hoping that FBA chapters will host fireside chats or roundtable discussions featuring the circuit mediator for that area [and local Board members will be reaching out to those chapters to initiate those roundtables.
These CLE events—perhaps accompanied by a breakfast, lunch, or cocktail reception—can provide an excellent opportunity not only to enhance the use of those ADR forums, but also to meet with likeminded neutrals and representatives.
With this first issue of The Resolver at hand—thanks to the efforts of editor Vickie Pynchon, our generous contributors, and FBA sections and divisions manager Adrienne Woolley (email@example.com), we invite you to join us in the unending way of creative service to your clients, the bar, and society via the path of resolution.
These are hard times and none of us is immune. I’ve been here before. In the early 1990s, my law firm announced we would ride out the economic crisis by henceforth buying legal pads without our firm name embossed on the binding. Layoffs of partners, associates and staff quickly followed. Some caught life rafts to other law firms; some were not so lucky. Those who stepped on others going up the compensation ladder were not treated well on their way back down. The water was cold and filled with sharks.
It seemed then, and seems now, that the entire profession has forgotten two critical principles of legal practice: clients, not profits, come first; and, partners see one another through the tough years in the same manner in which they share the profitable ones. Because people (our clients, our colleagues and our staff) are our only assets, I have five people-centered tips for surviving, perhaps even flourishing, in this challenging economic environment.
Although a California Court may properly sanction a non-party insurance carrier who possesses the authority to settle litigation for its failure to participate in a mandatory settlement conference, there is no statutory (nor inherent) authority given the Court to sanction the carrier or a party for its purported failure to negotiate in "good faith." As the Court in Vidrio v. Hernandez(2d DCA) explained today:
In sum, even were we to agree with the trial court's assessment of the conduct of counsel and the [insurance] adjuster, the failure to increase a settlement offer or to otherwise participate meaningfully in settlement negotiations violates no rule of court and is not a proper basis for an award of sanctions.11 (See, e.g., Triplett v. Farmers Ins. Exchange (1994) 24 Cal.App.4th 1415, 1424 [“[w]e eschew any notion that a court may effectively force an unwilling party to settle by raising the specter of a post hoc determination that failure to do so will be evidence of failure to participate in good faith”]; Sigala v. Anaheim City School Dist., supra, 15 Cal.App.4th at p. 669 [“„[a] court may not compel a litigant to settle a case, but it may direct him to engage personally in settlement negotiations, provided the conditions for such negotiations are otherwise reasonable‟”].) [Defendant] filed an appropriate settlement conference statement; her lawyer and Mercury [the insurance carrier] attended the conference and participated in it. While the trial court‟s frustration at the parties‟ lack of movement is understandable, no more was required.
In particular, the Court of Appeal, held that the Court was not at liberty to "judge" whether the defendant and its carrier "should have" offered more than had previously been offered at a mediation either because the case was "worth" more or because the offer was so low in light of the attorneys fees and costs that would likely be incurred at trial.
I believe most mediators would approve of this ruling, even though it applies only to settlement conferences and not to mediations, the latter of which is protected from the Court's inquiry by Evidence Code section 1119. Whether or not a mediator, a settlement judge, a party or a trial judge believes a defendant "should" offer more or a plaintiff "should" accept less by way of settlement, should not form the basis of an award of sanctions. Not only would such a rule decrease citizens' trust and respect for the Courts, whose job it presumably is toprovide a forum in which litigated disputes may be tried, such a rule would impermissibly chill the parties' Constitutional right to a jury trial.
Are mediators being hook-winked by clients who create artificial impasses for the purpose of procuring a favorable mediator's proposal? Does the mediator's recommendation carry so much weight that the parties are subject to a manipulated mediator's proffer? Does the mediator become just a tool of a party bent on flim-flam? Or is all distributive bargaining flim-flam?
I understand some lawyers are settling all their cases with mediators' proposals. Why is that? Are they savvier than their colleagues? Or do they just need the authority of the mediator to "sell" settlement to their clients?
Jump in here or over at John's place. Whether you're a mediator, a litigator, or a client, we'd both appreciate your fresh ideas.
CONFIDENTIALITY QUESTION HEADED BACK TO TRIAL COURT By Greg Katz
LOS ANGELES - The state Supreme Court has denied review of an appellate decision that had become a cause celebre for mediators concerned about confidentiality precedents.
Instead, the case will head back for a new trial that includes a dispute over whether a hand-drawn chart, created in a probate mediation and initialed dozens of times by the parties, should have been admissible as evidence.
A trial court had said that it was not, but the 2nd District Court of Appeal overturned the decision, saying it was in effect a settlement agreement and admissible under Evidence Code Section 1123(c). Thottam v. Thottam, B196933 and B196934 (Cal App. 2nd Dist., filed Sept. 3, 2008).
Many mediators expressed concern that the appellate ruling hurts mediation confidentiality by making draft documents admissible, and the case drew amicus letters from pro-ADR lobbying group California Dispute Resolution Council and others.
But the high court Wednesday denied review.
Tyna Orren, who won the appeal for Los Angeles-based attorney and political activist Peter Thottam, said she was happy but unsurprised that the court didn't take up the case.
"The reason mediators don't need to be concerned is that the opinion now tells them precisely what they need to do to avoid what happened in Thottam. Nobody should sign anything which leaves an opening for anything to be divulged," she said.
The 2nd District panel reasoned that the document appeared to be a settlement agreement, and that the parties had signed a premediation agreement allowing for the admissibility of mediation evidence that supported any agreements reached. That qualified the document for an exception in mediation confidentiality statutes.
"Whether or not the document contained all necessary details for enforcement, it certainly contained adequate manifestation of mutual consent to material terms which were capable of being made certain," making it a settlement agreement, Presiding Justice Norman L. Epstein wrote for the unanimous panel.
Justices Thomas L. Wilhite Jr. and Steven C. Suzukawa joined in the opinion.
Beverly Hills-based mediator Victoria Pynchon, who closely followed the case, said it was more about interpretation of the mediation agreement than about confidentiality, that the Supreme Court has vigorously defended the state's confidentiality laws in the past.
Attorneys should rely strictly on those laws when drafting mediation agreements, she said. "Just quote the statute or refer to the statute. Don't get fancy."
Stephen L. Kaplan of Laguna Niguel's Hicks, Mims, Kaplan & Burns, who had petitioned for review, said he was disappointed but expected that the new trial would go in favor of his clients, as the first one had.
The only difference: "There'll be one more piece of evidence," Kaplan said.
A law firm contends new Louisiana lawyer advertising rules slated to take effect in April will restrict its right to comment on Twitter, Facebook, online bulletin boards and blogs.
The Wolfe Law Group filed a federal suit today challenging the rules, claiming they would subject each of the firm’s online posts to an evaluation and a $175 fee, according to a press release. The construction law firm says in the suit that its own blog may qualify for an exemption for law firm websites, but its comments on other blogs would not.
The firm claims the rules would restrict its First Amendment right to speak freely about its trade. To make its point, the law firm has launched a blog called Blogging is Speaking.
Sometimes your business or professional negotiation has to take place in Court. This is an example.
Some attorneys and mediators make light of the power of the apology ("it's only about money"). My education, training and experience consistently suggest otherwise.
Today, we learn a lesson in heart-felt apology from Larry Bodine for a post I hadn't seen, but which Bodine himself admits was anti-Semitic.
"Elevator Pitch" Post Deleted I sincerely apologize for the crude and offensive "Elevator Pitch" post I put online last week. In the clear light of morning, it is clear that it was anti-Semitic and repellent. I want to thank all the people who commented and called me about it; I listened and took what you said to heart.
If you read on here you'll see that Bodine did not simply say "I'm sorry." He removed the admittedly offensive post; disowned it; and, empathized with those who found it offensive by sharing his own family's WWII imprisonment story.
Words that heal include expressions of caring, concern, gratitude and affirmation. [I]n demolishing the walls of hostility, we must be prepared to examine our own pattern of spoken words and embrace the practice of ethical speech. . . .
Because Bodine himself admitted the anti-Semitic nature of his post, it falls into the category of an identity-based conflict with some or all of his readers. Though speaking from a religious or "faith-based" viewpoint, I always found Cox' prescriptions for resolution to work equally well from the point of view of secular humanism. As Cox explains:
A faith-based reconciliation framework applied to an identity-based conflict . . . consists of six basic elements: imparting moral vision, building bridges between estranged groups, a peace accord, advocacy for social justice, political forgiveness, and healing deep collective wounds.
More particularly, Cox recommends the following specific steps:
1. Sharing life journeys and building common ground.
2. Sharing perceptions of the conflict.
3. Engaging in problem solving.
4. Sharing how one has caused offense to the other.
5. Exploring each community's narrative of history and perception of historical wounds.
If you read Bodine's spontaneous apology, you will see all of these elements contained in it. This is not surprising because apology and attempts to re-build interpersonal bridges are hard-wired into us as toddlers. As I wrote in "Shame by Any Other Name,"
Shame . . . "acts as a powerful modulator of interpersonal relatedness and . . . ruptures the dynamic attachment bond between individuals." 30 When an individual has broken this bond, he wishes to recapture the relationship as it existed before it turned problematic. 31 Toddlers shamed by their mothers, for instance, naturally initiate appeals to repair the momentary break in the emotional bond resulting from the shame-inducing behavior. 32 This process is called self-righting. 33 It is natural and universal. 34 The shamed toddler reflexively looks up at and reaches toward his mother. 35 Even a preverbal child will spontaneously express this need to be held in an attempt to reaffirm both self and the ruptured relationship, to feel restored and secure. 36
A healthy and responsive mother accepts and assuages the child's painful feelings of shame, enabling the toddler to return to a normal emotional state, one in which love and trust are ascendant. 37 If the caregiver is "sensitive, responsive, and emotionally approachable," especially if she uses soothing sounds, gaze and touch, mother and child are "psychobiologically reattuned," the "interpersonal bridge" is rebuilt, the "attachment bond" is reconnected, and the experience of shame is regulated to a tolerable emotional state. 38
This may all seem excessively academic. The point is that we all trespass on the feelings of others; those feelings are critical to our connection with one another; our connection with one another is fundamental to our individual well-being and our survival as a species; the urge toward reconciliation is therefore natural, as are our desire to be forgiven, our spontaneous expressions of remorse, our attempt to explain and normalize our bad behavior (we are all fallible and we have all suffered harm) and our fellows' willingness to forgive, particularly when we bare ourselves and our histories to one another in the course of our effort to re-establish what joins us and to move beyond that which divides us.
And for that lesson, we owe thanks to Larry Bodine this evening.
Now we just need a blogging claims adjuster and we can bring peace to the Middle East.
Below are John's impressive credentials. We meant to meet for a "quick" cup of coffee. We talked negotiation strategy and tactics for nearly three hours.
As I review websites I often wonder about the experiences of the authors and the biases they bring, so I feel I should disclose mine for those who want to know more. I have been fortunate to work with two “hands on” in-house legal teams, with settlement negotiations handled primarily by employed lawyers rather than their law firms. I am also lucky to have practiced in law firms with true trial lawyers who generated genuine negotiating leverage whether settlement was their objective or not. Through these experiences I have settled cases threatened, pending or mediated in about 20 states - from Montana to Florida and from New Hampshire to California - and have managed the resolution of disputes around the world. Working with and against some very good lawyers and employing some of the truly legendary mediators, I feel fortunate to have seen a real cross-section of styles and approaches. In almost all of these cases I have had the opportunity to work behind closed doors with the people who really decide when cases settle - CEOs, CFOs, General Counsel, COOs, individual plaintiffs, insurers, board members, auditors, and more.
First, I note that much of Professor Murray's article focuses on arbitration agreements that are forced down the throats of consumers -- an injustice that is so far removed from one that might arise in a mediated settlement conference that I'd like to address it separately on another day.
Second, I am not without criticism of court-annexed mediation practices -- those criticisms populate this blog in great number. Nor am I naive or inexperienced enough to pretend that mediators do not effect party decisions even when they are represented by attorneys who are presumably mediation- and mediator-savvy.
Nevertheless, re-reading Professor Murray's criticisms of mediation this morning, I am once again stuck by the number of untested assumptions upon which he bases his pretty radical suggestion that mediated settlement agreements be vetted by judicial officers. The major and minor premises of Professor Murray's accusation that mediation corrupts justice include the following:
there is only one set of "powerful repeat players" -- insurance companies -- who choose and use the services of mediators;
the other set of repeat players -- plaintiffs' personal injury and employment counsel -- are more or less universally poorly equipped to either influence the mediator or to protect their clients from mediator bias;
the easily influenced plaintiffs' bar, if not protected from mediator bias, will counsel their clients to voluntarily enter into sub-optimal settlement agreements that favor the interests of insurance carriers over those of their own clients';
there is such a thing as an "objectively bad settlement" that a judicial officer would be equipped to detect and remedy;
money paid to a "neutral" is the only pernicious influence on dispute outcome, as opposed to, say, racial, nationality, gender, and/or any other socio-economic differences between a judicial officer and a litigant or between the jury and a litigant; and,
judicial officers are not subject to the influence of the repeat attorney-players who appear before them and socialize with them at Bar Association and other events.
Of all of the assumptions requiring testing before we impose a supervisory judiciary upon mediators, the premise that an objective, measureably "reasonable" settlement of any dispute exists is the one that most requires addressing.
Because I could write a book on this topic, let me just highlight some of the factors that would make third-party vetting of mediated settlement agreements difficult to impossible.
money is not the only reason people file suit nor the only basis for their decision to settle it;
whether the litigation at issue is a $2500 slip and fall action between a local grocery store and its customer; or a billion dollar insurance coverage dispute between an insurance carrier and an oil company, the people and commercial players involved are at least as -- if not more -- concerned with injustices that the law does not address as they are with those that it can address;
though mediated settlement agreements are partially based upon the cost of further litigation and trial, on the one hand, and the probability of victory times the potential jury verdict on the other hand, they are also based on party needs, desires and fears that have nothing whatsoever to do with legal causes of action such as:
a corporation's fear that it will not be able to overcome jury bias against commercial enterprises, particularly if that enterprise is engaged in providing liability and/or property damage insurance to its customers;
the fear of individuals that they will not be able to overcome jury bias against any marker of their marginalization from the dominant culture such as color, gender, nationality, sexuality or religion;
the desire that one's opponent acknowledge responsibility for the role he/she/it played in the events giving rise to the dispute and for the actions taken to resolve it, many of which further inflame the parties' experience of injustice;
party desires for revenge; and,
party tendencies to "read" and "spin" the dispute in a way that is favorable to him/her/it in all particulars -- misperceptions that are often corrected in the course of joint sessions between the parties who actually experienced the injury-causing event.
Examples of ways in which parties are able to resolve conflict in the context of their highly individual interests rather than the little buckets of rights and remedies into which we pour the facts of their dispute?
a physician gives his consent to settle a malpractice action when he realizes that the Plaintiff is not attempting to "hold him up" but genuinely experienced the breast examination he gave her as an assault;
the creditor agrees to settle for pennies on the dollar when convinced by evidence proffered during a confidential mediation session that the debtor would be bankrupted by any payment in excess of the offer (evidence not discoverable in litigation because it is not "relevant" to the causes of action alleged);
garment manufacturers settle acrimonious copyright infringement litigation after their counsel allow them to have a confidential mediation conversation which cannot be used in court against them during which they learn that they have more in common -- and more ways to advantage one another economically -- than they have to fight about;
a claims adjuster is brought to tears -- and seeks greater settlement authority -- by a father's frank confession in a confidential mediation conversation of the guilt he carries for the loss of his child in an automobile accident caused by the high speed blow-out of an allegedly defective tire; and,
family members not only settle their lawsuit but reconcile after years of self-imposed exile when they realize the "family" asset they've been fighting over is worth less to them than their love for one another.
What I'd like Professor Murray and everyone who reads his article to understand is that we all share this justice problem. The adjudication system is not working well for the people it was designed to serve. The ADR options we've put in place to smooth out the rough edges of 18th century adversarial theory and practice are themselves insufficient to efficiently and fairly resolve 21st century conflicts.
That's why I'm calling for a LegalTED Conference. And if Professor Murray will forgive the snippiness of yesterday's post, I'd like him to be one of the members of the Steering Committee.
Because we mediators spend so much time listening to litigants' competing stories of right and wrong, I don't think I'm going out on a limb to say that we "get" the great gray expanses that separate fear from understanding, anger from compassion and "the truth" from one's subjective experience of it.
What motivated this post was a recent challenge to a mediator's "right" to express his political beliefs in a mediation forum. "You're supposed to be neutral," said the challenger. "It's wrong and unprofessional to express your political beliefs here."
As the Presidential election nears, I want to clarify my own views on mediation neutrality, particularly my belief that we mediators do and should leave our neutrality when we close the mediation room door. Neither I, nor this blog, is "neutral" about the upcoming election. I am actively campaigning to elect Barack Obama because I believe he is best suited to withdraw our troops from Iraq, reconcile ourselves with the world community, respond to conflict as a negotiator rather than as a conquerer would, and restore the damage done by the Bush administration to the rule of law in America. If I cannot say this because I am fearful of offending some of my readers or concerned that some potential clients will choose not to use my services, I would count myself unworthy of the freedoms fought for by those who came before us.
What it Means to Be an ADR "Neutral"
Though there is disagreement among scholars about the precise nature of "mediation neutrality," a recent article on the subject at BeyondIntractability.com expresses my own view. That article quotes negotiation gurus Kevin Gibson, Leigh Thompson, and Max Bazerman on the three distinct types of neutrality that mediators can and do practice.
Neutrality as impartiality, which holds that the mediator should be free of bias and should set aside his or her opinions, feelings, and agendas;
Neutrality as equidistance, which focuses on the idea that mediators should try to give equal consideration to each side; and,
Neutrality as a practice in discourse.
These theorists believe, as do I, that it is part of a mediator's job to assist the parties in framing the problems and to lend guidance in expressing their tales of injustice to one another. The mediator, say these scholars,
gives each side a chance to talk about their positions and concerns, and then reframes these issues in a more neutral way so that parties are more likely to listen to and understand the other side's viewpoint[, t]hne helps the parties . . . explore settlement options and to move toward a solution that all can agree on.
Neutrality from this viewpoint "means that the mediator who facilitates this discussion should not have an interest in advancing the goals and positions of any party involved."
Leaving One's Neutrality at the Mediation Room Door
To help people resolve conflict requires a mediator to develop certain ways of listening; particular ways of communicating; and, specific ways of thinking about the malleability of "objective reality" in our subjectively experienced lives. The practice of mediation is also revelatory of the raw power of people's affiliative desires -- their persistent urge to reconcile differences and settle accounts.
When I leave the mediation room, I remain a mediator in spirit -- one who has seen the value of negotiated resolutions over the useof brute force and the power of collaboration over deference to an authoritarian decision-maker.
[c]apable international diplomacy requires open and committed listening, informal problem solving, prejudice reduction, collaborative negotiation, public dialogue, mediation, arbitration, ombudsmen’s offices, conflict resolution initiatives, and a panoply of proactive, adequately-funded resources that can be brought to bear on any problem. Positive examples can be found in every successful mediation and collaborative negotiation. Ideally, peace-making should receive the lion’s share of our national budget, allowing us to train every diplomat, and international representative in the most advanced mediation skills, include mediation in every treaty, and form an international corps of conflict resolvers, capable of building conflict resolution capacity globally, including in the US.
As mediators, we need to recognize that we also are global citizens, and responsible by virtue of our knowledge and experience for helping to save the planet. We need to weigh in on the important issues of the day that directly touch on our expertise, including not just who we negotiate with, but how we negotiate and why. Without it, Obama and the perspective he represents may succumb to those who think patriotism requires war and the slaughter of innocents. The time to speak up is now.
In electing a new President to lead us into a productive future, I believe, as do many of my mediator friends and colleagues, that Barack Obama is the clear choice. If our political future is important to us, we will not hesitate to publicly lend him our support.
A lessee of commercial office space complains that the common areas are not being properly maintained. The local high school has just banned Catcher in the Rye. Again. A prestigious law firm fires a first year associate because he refuses to remove his new “tongue stud.” These seemingly disparate disputes have one quite obvious but ill understood characteristic in common – they are all examples of unresolved conflicts that have ripened into discrete disputes.
Pretend for a moment that you never went to law school. I know. It's hard. But give it a shot.
Lawyers (those other people who went to law school) are are trained to understand, manage and remedy all disputes, no matter however different they might be, in a single, highly controlled manner.
To help their clients deal with the problems mentioned here, lawyers will read the lease; research the latest Supreme Court rulings ("Fuck the draft"); and, study the statutes. Once they understand the facts that are relevant to the law, they “think like lawyers.”
How do they do that? "Think" like lawyers?
First, they subject the facts and the law to as much scrutiny as any idea can bear before it disintegrates into the dust of first principles. They create a chronology of events, highlighting and tailoring the "story" of the conflict that "fits" the available "causes of action" giving rise to "rights" in their client, obligations in their "opponent" and remedies for the harm suffered.
This "legal" dispute was once about a relationship between people. Now it is an "actionable" claim in an extremely controlled process in which one of the parties will "win."
That, of course, rarely happens because the legal system has become too expensive and the law too uncertain for most people to risk what used to be it's goal -- a jury trial.
Lawyers recognize frivolous or baseless or "defendable" claims by observing just how uncomfortably the “facts” sit inside their opponent's “causes of action.” When called upon to justify their entitlement to get their client's claim before a jury (demurrers, motions for judgment on the pleadings, summary judgment motions, non-suits) the Plaintiff's attorneys can and will simply change the way the story is told. They make the facts fit the law. There's nothing wrong with that. That's their job. If the facts won't "fit" the law, lawyers apply themselves to the law's creative expansion.
What attorneys do not learn in law school is how and why conflict develops into a dispute and then predictably evolves, usually getting more acrimonious and difficult to resolve.
My friends who are lawyers (I never went to law school, remember? and neither did you) tell me that they know how to escalate conflict but not how to de-escalate it. They also tell me that they see a lot of injustice. Sometimes the injustice arises because the laws themselves are unjust. Sometimes the tragic and unfair consequences of human interactions just don't have any legal remedy. And sometimes the legal process itself makes disputes worse -- more protracted, frustrating and expensive -- rather than better.
In common law countries, like ours, where the law is forged in the fire of conflict, shouldn't attorneys be taught not only how to "win the case" but also how to dampen the flame? Most litigators I know would respond with a resounding "no!"
Conflict resolution that is not "handled" as litigation or arbitration is for some other professional to deal with. Therapists come to mind. Don't they help the parties deal with that most uncontrollable aspect of any dispute -- something not only lawyers but the law itself exclude from the legal action?
Feelings. Not just sad or mad feelings. But the type of feelings that make teenagers shoot other teenagers on the streets of Los Angeles. Feelings of loss, tragically unfair outcomes, powerlessness, rage and despair.
The purpose of this post and the new thread that it is meant to begin? To start something radical.
If you're not aware of what I'm about to tell you, you should be.
I was just talking to a friend over coffee the other day about how we're using 18th Century technology (the jury trial) to solve 21st Century problems.
Here's the idea. A legal TED Conference.
If you'll look at what TED accomplishes, you'll know what I don't mean. I don't mean a conference to trot out any new/old "ADR" ideas -- mediate this, arbitrate that, create new rules and forms for the lawyers to use.
I mean creating the highest level think tank we can to first envision and then implement a dispute resolution technology that incorporates what we've learned since we first enshrined the jury trial in our Constitution more than 200 years ago.
I have one man in mind -- Larry Lessig. But surely there are others. The first step would be to suggest names for the coordinating committee.
Why do I think of TED? Because what it envisions cannot be accomplished. It cannot even be envisioned. It's a fool's errand. One I'd be willing to spend the rest of my own life working on.
"What happens," asks Katz, "when a mediator is accused of breaking mediation confidentiality, the thing many mediators say is essential to their craft?"
The answer: probably nothing.
As Katz reports, the Simmons v. Ghaderi opinion that made mediation confidentiality iron-clad, arose from a mediation in which the neutral provided a sworn declaration to the Court reciting "details about [his attempt] to persuade Ghaderi to sign her consent," among other things.
Ron Kelly, an architect of the state's confidentiality statutes, opined that the Declaration filed by the mediator in the Simmons case breached "Evidence Code Section 1121, which forbids mediators, in most instances, from reporting to the courts anything that takes place in their mediations." Kelly concluded by saying,
If you were going to go after a mediator for malpractice, it seems like an open-and-shut case of violating the law would be a good start, don't you think?
Yes I do. Yet local attorneys and mediators seem unconcerned. Lucie Baron of ADR Services told Katz thather panel of neutrals had no policy on the matter because the mediators -- after all -- are attorneys and independent contractors to boot. They don't, she noted, ask her for legal advice.
Not a bad call on Baron's part. But what about the neutrals?
Their lack of attention to the spectre of "open-and-shut" malpractice litigation is perplexing. Though the Simmons mediator could colorably claim that the law of confidentiality was unsettled at the time he submitted his declaration -- or that the factual scenario before him permitted the disclosures made -- in a post-Simmons environment, neutrals cannot be so sanguine. Any disclosure of any communications during a mediation by the neutral would likely be actionable so long as it caused one of the litigants appreciable harm.
When someone is unhappy with a result -- as too many litigants of mediated settlements are /* -- they search the field for people to blame.
So far, mediators haven't been among the potential culprits.
I wouldn't count on that situation lasting much longer.
Here's what Erik Lillquist has to say about the NFL official/federal judge comparative neutrality quotient:
My motivation for the title of the post is that I think NFL officials are actually better than judges on a number of these scores. For instance, NFL officials do not have the repeat-player problem. Furthermore, NFL officials are graded on all their calls, from every game, ensuring that the same calls are being made in all situations (and these days, they have to contend with the possibility of instant replay review on every call). And unlike federal judges and (to a certain extent) major league umpires, NFL officials are subject to the real possibility of termination for poor performance, something that cannot happen to Article III judges and rarely happens with major league umpires. As this LA Times article notes, between 2004 and 2007, there was actually more new Supreme Court justices than new (full-time, I assume) major league baseball umpires. In the NFL, on the other hand, turnover is more common. Because being a NFL official is so relentlessly competitive, the result is that (I think) NFL officials are more likely to get the call right than your typical judge (or umpire).
Neutrality as impartiality, which holds that the mediator should be free of bias and should set aside his or her opinions, feelings, and agendas.
Neutrality as equidistance, which focuses on the idea that mediators should try to give equal consideration to each side.
Neutrality as a practice in discourse. Mediators are supposed to shape problems in ways that give all speakers a chance to tell their story in a way that does not contribute to their own de-legitimization or marginalization.
The mediator gives each side a chance to talk about their positions and concerns, and then reframes these issues in a more neutral way so that parties are more likely to listen to and understand the other side's viewpoint.
Then the mediator helps the parties to explore settlement options and to move toward a solution that all can agree on. Neutrality means that the mediator who facilitates this discussion should not have an interest in advancing the goals and positions of any party involved.
Similarly, Rachel Field (2000) points out that the term 'neutrality' encompasses "issues such as
a lack of interest in the outcome of the dispute,
a lack of bias towards one of the parties,
a lack of prior knowledge of the dispute and/or the parties,
the absence of the mediator making a judgment about the parties and their dispute, and
the idea that the mediator will be fair and even-handed."
So why would the S[pecial Litigation Committee] release [Wilson Sonsini] and Larry Sonsini? The SLC wrote that it weighed the opinion of a legal ethics expert as well as testimony and documents related to Sonsini and the firm’s roles at Brocade. It also listened to Sonsini and his firm’s “contentions that Brocade employees misled WSGR about stock-option grants” and that the firm had negotiated a good settlement with the SEC and helped avoid DOJ action against Brocade. The committee also considered the firm’s longstanding relationship with Brocade and the firm’s “willingness” to help the company resolve any “outstanding questions” about the backdating.
There's been some salacious commentary (such as WAC's Like a Vixen) about Blawg Review # 171. I just want to say to anyone who missed the sexual revolution -- on either side of the generation gap -- we're sorry to have started it all. We just never really left high school.
We've also heard some complaints that the most recent Blawg Review is just too darn long. In honor of our sister blog and those attorneys who are still billing 2400 hours/year, we give you the IP Executive Summary of the Virgin Blawg Review #171 below.
My late mother, aleha ha-shalom, told me repeatedly that I had a religious obligation to learn every day, and I have honored her memory by doing exactly that. Learning also involves changing how you think about things; it doesn't only mean reinforcing the existing views you already have. In this respect, Second Circuit Judge Pierre Leval once said that the best way to know you have a mind is to change it, and I have tried to live by that wisdom too. There are positions I have taken in the past I no longer hold, and some that I continue to hold. I have tried to be honest with myself: if you are not genuinely honest with yourself, you can't learn, and if you worry about what others think of you, you will be living their version of your life and not yours.
Other IP bloggers have, of course, reflected on Patry's Final Blog Words here and here.
The IP Dispute of the Week, of course, is Hasbro's suit against Rajat and Jayant Agarwalla for their Facebook hit Scrabulous. Scrabble itself was invented during the Depression by Alfred Mosher Butts, an out-of-work architect. How did he do it? As the New York Times explained in its review of Steve Fastis book, Word Freak (Zo. Qi. Doh. Hoo. Qursh)Scrabble's inventor assumed that the game would work best if the game letters "appear[ed] in the same frequency as in the language itself." So he
counted letters in The New York Times, The New York Herald Tribune and The Saturday Evening Post to calculate letter frequencies for various word lengths. Playing the game with his wife, Nina, and experimenting as he went along, Butts carefully worked out the size of the playing grid (225 squares, or 15 by 15), the number of tiles (100), point values for the letters, the placement of double- and triple-score squares, the distribution of vowels and consonants, and so on.
If Player 1 opens with "fringe" (double word) for 24 points; Player 2 follows by slapping an "i" on the triple word score followed by an "n" for "infringe" and 33 points; and, Player 1 responds with "ment" for 19 points, the combined score for "infringement" is 75 points. Our readers can do the math and moves on "trademark" and copyright."
"a new studio tactic [is] not to prevent piracy, but to delay it . . . Warner Bros. executives said [they] prevent[ed] camcorded copies of the reported $180-million [Dark Knight] film from reaching Internet file-sharing sites for about 38 hours. Although that doesn't sound like much progress, it was enough time to keep bootleg DVDs off the streets as the film racked up a record-breaking $158.4 million on opening weekend. . . The success of an anti-piracy campaign is measured in the number of hours it buys before the digital dam breaks.'"
Next week, the Blawg Review will be hosted by the Ohio Employer's Law Blog which we expect will be far more respectful of BR's readers' political, religious and sexual sensitivities than this one was. Thanks for letting us play. And a very, very, very good night!
This may be the biggest break-down in attorney-client communication in the history of litigation. Because this public statement by Allstate about its former attorney would be highly defamatory if not true, I'm taking Allstate at its word here.
Allstate claimed that it had not deliberately flouted Manners’ orders. Rather, it said, its now-former attorney — then with the firm of Wallace, Saunders, Austin, Brown & Enochs — had failed to respond to discovery requests.
Allstate said it was appalled when it learned last year that it was being threatened with contempt.
“Allstate litigates hundreds of bad faith cases each year,” Allstate stated in court documents. “And it responds to discovery requests — just like the ones in this case — in many of them. There is no reason in the world for Allstate not to participate in discovery — particularly in this case, where there is an underlying judgment of $1 million.”
Allstate said it “immediately removed” the attorney from the case and retained new counsel.
The answer to the question "how to break bad news to my client" can be found at any of the links below. Most of these links are for health care professionals, who have to break bad news to their patients and their families far more often than we have to tell our clients that something went terribly awry. Put that at the top of your attorney gratitude list.
Do not avoid seeing the [client] or leave them anxiously waiting for news. Sometimes anticipation can be worse than even the worst reality.
Treat others as you would wish to be treated yourself.
Get the facts before you start.
Make sure you will not be disturbed. If necessary switch off phones or bleeps.
Be factual but sympathetic. Always be empathetic however you may feel personally.
Give time for the information to sink in and the opportunity to ask questions before moving on. Do not seem rushed.
If the [client] does not seem able to take any more be prepared to end the consultation and to take it up again later.
Look for all the cues, verbal or others. , , , Perhaps they would like you to speak to someone else or to have someone with them for the next meeting.
Never say that nothing can be done or the [client] will lose all hope.
Whilst trying to be positive never lose track of the fact that this is a serious and potentially fatal [reverse in the litigation]. Be optimistic but do not promise success or anything else that may not be delivered.
O.K., the subject line was meant to shock you and to draw criticism for what I will admit is my greatest unresolved prejudicial default -- that white men over 65 who didn't participate in the American cultural revolution of the late nineteen sixties and early 1970's did not and will never "get it."
failed to disclose that he'd been censured while on the bench for making "sexually suggestive remarks to and asked sexually explicit questions of female staff members; referred to a staff member using crude and demeaning names and descriptions and an ethnic slur; referred to a fellow jurist’s physical attributes in a demeaning manner; and mailed a sexually suggestive postcard to a staff member addressed to her at the courthouse.”
The majority arbitrators deciding the malpractice case stated that the female claimant was not credible because the "severity of the symptoms to which she testified went beyond what she described to her doctors, adding, “This claimant has had five prior facial surgeries.”
Similarly, in summarizing the claimant's expert’s testimony, these arbitrators noted, “One thing probably everyone can agree upon, after five facial surgeries, [claimant] could have done without a sixth one.”
Back to My Own History as Descriptive of -- But No Excuse for -- My Own Biases
We all have biases that we hide from others and some that we successfully hide from ourselves.
We live, I'm told, in a 200 year present. That means that my early life affects your life today. After all, I'm an old white woman, about whom you may well have biases. If I sit on your arbitration panel, you're going to want to understand those biases. That's why I'm giving you a bullet-pointed history of what the world was like when I was forming my essential character at 17 years of age in 1969.
the "want-ads" in the classified section of every major newspaper in American were categorized by gender -- "help wanted - women" and "help wanted - men"
in my senior year in high school, my entire class took "preference aptitude" tests to give us an idea of what our future careers might look like -- the girls were given "pink" tests and the boys "blue" tests -- had I shown an aptitude for, say, math (and no I didn't) I would have been steered into nursing; my male friends into "medicine" as physicians.
women were subject of explicit ridicule in magazine and newspaper cartoons -- we were airheads, bimbos, bad drivers, harpies or -- the "new" stereotype -- communist-longhair-folk-singing-America-hating-hippie-riot-inciting-"girls" who were alternately "men hating" or -- an old phrase -- "of easy virtue."
it wasn't until the 1970's, when I was in college and already planning a career teaching English (after all, nursing required math-skills) that the idea of a career in the law for women as anything other than a secretary began to seem possible.
by the year I graduated from law school in 1980, Columbia's female population had grown to a whopping 32%
although the enrollment of women in my law school class at U.C. Davis was nearly 50% in 1980, when I told my beloved mother in 1976 that I was going to apply to law school she said "why do that, honey? Be a legal secretary, then you can marry a lawyer."
when my husband attended Yale Law School ('67-'70) he had seven women classmates
when I was practicing law (these all from the early '80s)
a partner for whom I worked told me that women weren't permitted at the local "men's only" club because "we don't want our wives there."
a Judge required me to identify myself as Mrs. or Miss and when I said I didn't think it necessary to identify myself by my marital status, asked "what are you some kind of [women's] libber?" (yes, I lost the motion)
I was advised by the few women attorneys senior to me not to get pregnant until after I made partner
secretaries were allowed to refuse to be assigned to a woman attorney
the first woman to make partner at my law firm was quite openly referred to as "the first muff partner" by her colleagues
on the other hand, when a client said (of my assignment to its case) that the company did not want to be represented by a "girl," my partner told the client "then you don't want this firm representing you because she's the best associate I have"
I promise to work on my prejudices. And I advise anyone who is about to appear before any dispute resolver -- be that person male, female, white, black, young or old, GOOGLE THEM FIRST!
My most recent post on this issue stressed the need to de-demonize one's opponent in order to free everyone up to creatively participate in a joint session in which defensiveness and posturing are not the orders of the day.
Listen, the parties have already demonized one another by the time they bring their dispute to an attorney. Once the lawyers take over and the parties stop communicating with one another, it's the interaction between the attorneys thatexacerbates the already existing sense of distrust and betrayal.
Now, several states are trying to improve lawyer-to-lawyer relationships by eliminating the term "zealous representation" from their Codes of Conduct and replacing it with terms like "honest," "effective" and "honorable."
My immediate response to changes in language is that they make no difference. Then I remember how changing "Mrs." and "Miss" to "Ms." and taking the "man" out of fire, police and mail, changed career aspirations for generations of women.
So I'll ask my readers. Do you think the removal of the term "zealous advocacy" will have an effect on the practice of law?
I take these criticisms very very seriously, repeating throughout any mediation session my opening assertion that my role is to present the parties with choices and to faciliate a settlement if they believe it may be better alternative to continued litigation, not to hustle them away from their right to a jury trial.
I would be far more successful in being "neutral" about proceeding to a jury trial if there were an easier, less costly, and speedier way to bring a dispute before a jury. We have, lamentably, permitted our cherished rule of law to become so procedurally encrusted that it sometimes seems like no option at all -- at least not an option available to all but the wealthy or those represented by lawyers willing to accept a contingent fee.
All of this troubles me. I invite comment at the same time that I provide the thoughts of some of our greatest statesmen and jurists about the right to trial by jury.
"There was not a member of the Constitutional Convention who had the least objection to what is contended for by the advocates for a Bill of Rights and trial by jury." (1788)
"Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds." (1774)
"I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." (1788)
"Trial by jury is part of that bright constellation which has gone before us and guided our steps through an age of revolution and reformation." (1801)
"The wisdom of our sages and the blood of our heroes has been devoted to the attainment of trial by jury. It should be the creed of our political faith." (1801)
"Trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature." (1789)
John Quincy Adams
"The struggle for American independence was for chartered rights, for English liberties, for trial by jury, habeas corpus and Magna Carta." (1839)
Patrick Henry of Virginia [Patriot who said "Give me liberty or give me death!"]
"Trial by jury is the best appendage of freedom by which our ancestors have secured their lives and property. I hope we shall never be induced to part with that excellent mode of trial." (1788)
"The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government." (1788)
"The protection of life and property, habeas corpus, trial by jury, the right of an open trial, these are principles of public liberty existing in the best form in the republican institutions of this country." (1848)
Judge Stephen Reinhardt
"Our constitutional right to trial by jury does not turn on the political mood of the moment, the outcome of cost/benefit analyses or the results of economic or fiscal calculations. There is no price tag on the continued existence of the civil jury system, or any other constitutionally-provided right." (1986)
"Trial by jury is the best institution calculated for the preservation of liberty and the administration of justice that was ever devised by the wit of man." (1762)
Judge William Bryant [First African-American federal district court judge in D.C]
"If it weren't for lawyers, I'd still be three-fifths of a man." (2004)
Justice William O. Douglas
"The Massachusetts Body of Liberties was a new Magna Carta. It contained many of the seeds of the civil liberties which today distinguish us from the totalitarian systems, including the right to trial by jury." (1954)
Justice Hugo Black
"Our duty to preserve the Seventh Amendment is a matter of high Constitutional importance. The founders of our country thought that trial by civil jury was an essential bulwark of civil liberty and it must be scrupulously safeguarded." (1939, 1943)
Justice Ward Hunt
"Twelve jurors know more of the common affairs of life than does one man, and they can draw wiser and safer conclusions than a single judge." (1873)
The cost of a thing is the amount of life that you must exchange for it -- now or in the long run (Thoreau)
if you have an on-going relationship -- even as limited as a note payable -- squeezing the last nickel out of the deal may impair your bargaining partner's ability to perform
what goes up, must come down, i.e., squeezing out the last nickel creates enemies who none of us can afford when times are good, let alone when times are bad
taking advantage of another's weaknesses tears at the social fabric
it makes us all more watchful and less productive
it doesn't actually feel good to line your pockets with the misery of others
sometimes the downtrodden rise up -- every couple of centuries or so, creating an entirely new order -- the generous man and woman will not be on the wrong side of that revolution
global warming -- think about it -- the order will change as will the countries who will be asking for favors
you reap what you sow (I'm pretty sure I learned this in Sunday School)
social relations do not exist "out there" -- they are co-created by one person's relationship with every other person -- the society you inhabit is the one you create -- if you don't want your neighbor taking your last dime, don't take his
collaborative effort results in greater progress than individual activity -- if you decrease trust, you impede advancement in business, the arts and science
Readers! Can I count on you to give us all more reasons?
One of the reasons I began this series was to explore the type of professional behavior that tends to trigger professional malpractice litigation -- and how that litigation might be avoided.
As you may recall, my first post cited a study finding that the top three reasons for filing litigation against a medical provider were:
so that it would not happen to anyone else . . . 91%
I wanted an explanation . . . 91%
I wanted the doctors to realize what they’d done . . . 90%
In that same study, only 66% of respondents said they'd brought suit because they wanted money.
Other studies have found that the failure to health care professionals to effectively communicate with patients and their families give rise to more litigation than negligence or bad results in treatment. As reported in the March/April issue of Patient Safety and Quality Healthcare
ineffective communication with patients and families, rather than quality of care, was the underlying cause of patients' and families' decisions to file suit against their caregivers (Vincent et al., 1994; Hickson et al., 1992). Other researchers found that most patients would be less angry and less likely to sue if physicians honestly and compassionately disclosed medical errors that occurred, admitted responsibility, took steps to reduce the chances of repeat errors in the future, and offered sincere apologies for the suffering that may have resulted because of the bad outcomes (Gallagher et al., 2003). Similarly, research on apologies suggests that individuals receiving a full apology that both expresses sympathy and takes responsibility by the person who wronged them are more likely to accept settlement offers and negotiate towards a resolution rather than going to trial (Robbennolt, 2003).
Someone once told me that a divorce is a hologram of the marriage -- that all of the marital dynamics that have never been resolved -- or even surfaced -- by the divorcing couple -- take shape and form in one way or another in the course of the divorce. Not surprisingly, the "weapons" of marital dissolution are its most precious assets -- relationship and children -- and its most symbolic -- money. /*
So it is that historic family dynamics (rife with unresolved conflict) will more or less naturally play themselves out around the bed of a loved one who is -- or may be -- dying.
MAIN RESULTS: At least 1 health care provider in 78% of the cases described a situation coded as conflict. Conflict occurred between the staff and family members in 48% of the cases, among staff members in 48%, and among family members in 24%. In 63% of the cases, conflict arose over the decision about life-sustaining treatment itself. In 45% of the cases, conflict occurred over other tasks such as communication and pain control. Social issues caused conflict in 19% of the cases.
CONCLUSIONS: Conflict is more prevalent in the setting of intensive care decision making than has previously been demonstrated. While conflict over the treatment decision itself is most common, conflict over other issues, including social issues, is also significant. By identifying conflict and by recognizing that the treatment decision may not be the only conflict present, or even the main one, clinicians may address conflict more constructively.
It's Not About Money But it Will Become About Money if Conflict is Not Treated at the Source
I have much more to say about this but I need to get out to the Valley to see my dad who is -- amazingly (to me at any rate) -- surviving without food or water into Day Nine.
For now, I will simply remind my readers of the following:
Why the Coming Crisis and Likelihood of Litigation?
The parents' of the baby-boom are dying. Extraordinarily high levels of conflict in health care settings are associated with dying. Hospitals and health care professionals are not yet up to par in resolving conflict at its source. In the absence of programs to assist the families of the dying negotiate their way through this traumatic experience, people will seek out attorneys; attorneys will, as the law does, monetize pain, suffering, and injustice.
The research is in. The solutions are available.
It's up to us.
*/ Money is symbolic? Yes it is. As my longer article on the many meanings people give to money notes:
It is money’s nearly infinite plasticity that makes exchange of unlike things not only possible, but nearly effortless. Unlike barter, which famously requires a “double coincidence of wants,” money creates a bridge to the future; permits trade at a distance; allows the exchange of durable objects for perishable goods; and, is capable of reducing nearly every human activity into a quantitative monetary value.
Although contemporary money seems to have shed all of its qualities except its quantity, “its oneness or fiveness or fiftyness,” we do not in fact use money as if it were fungible. We experience the value of a dollar earned differently from the way we experience one that is stolen or given to us as a gift and we spend it differently as well.
Let's for a moment assume that I had not surrendered the control of Dad's final days to his wife, into whose hands he has so indisputably placed them.
If you've been following this series, you may have concluded that my Dad's immediate family (step-children; my sister) are likely indifferent to, uninterested in or incapable of dealing with the end of Dad's life. My compassionate default is that these blood- and step-siblings are neither uninterested nor callously indifferent to my father's fate, but simply incapable of responding to this intensely emotional experience for family-historical, social, psychological, emotional or practical reasons.
Let's assume, however, that surrounding my father's hospital bed is a clamorous family, all expressing different concerns, desires, options, solutions and resolutions to the question whether to insert, or later remove, a feeding tube, remembering Ken Cloke's observation in his new book, Conflict Revolution, that a dispute occurs
not only between individuals, but in a context, culture, and environment; surrounded by social, economic, and political forces; inside a group or organization; contained by a system and structure; among a diverse community of people; at a particular moment in time and history; on a stage; against a backdrop; in a setting or milieu.
[These] conflicts were often fueled by different perceptions of the medical facts, different understandings of the prognosis, different interpretations of patient behavior (generally relating to whether the patient was experiencing pain and suffering) and different personal value hierarchies. As we searched for ways to help patients, family members, and staff understand the clashing cultures and discordant assumptions that animated their arguments, we realized that the substantive parts of our interventions were more than outweighed by the process elements. Searching for the right theoretical model steered us to the frame and the techniques of mediation.
The mediators in my readership will not doubt the efficacy of neutral-intervention in these decisions. As my own experience demonstrates, however, no one sends a mediator or even the palliative care nurse or social worker to your loved one's hospital room unless someone has "hipped" you to the fact that they are available to you.
Listen, my first husband was a social worker and it wouldn't have occurred to me to ask for one at the hospital unless my health care executive friend had told me to do so. Nor would I have known there was a palliative care nurse on staff unless my friend the hospital hospice director hadn't told me her name and how to contact her.
So What, if Anything, Could a Mediator Do to Assist the Family in the Circumstances Outlined in My Hypothetical?
Cohen has systems in mind, not merely interventions, so he begins his proposed five-step model with training (echoing my question to the social worker -- "don't they train these doctors in active listening?")
Much of what we have said before about managing emotions [/*] is relevant here, as is the clarification of "professional emotions" on the part of doctors. Negotiation training for doctors is a must. . . . Already the negotiation field is beginning to tailor training programs to health care professionals by using narratives and cases developed by doctors for doctors. , and discussion of appropriate techniques with simulation, exercises and feedback." . . . . .
More specifically, [others] identify five types of ADR training and education: marketing efforts (convincing stakeholders to buy-in),awareness education (informing users what ADR is and what role it plays in the organization),conflict management and communication training (generic training not geared towards a particular type of ADR, [r]ather, it is focused on increasing participants' understanding and acceptance of conflict and on improving their communication skills, including active listening and direct communication"), consumer/user training (focusing on what to expect in the ADR proceeding, how to prepare for ADR, how to identify interests, options, etc.),and training of third-party neutrals.
*/ But please don't let the family know that is what you are trying to do, i.e., manage, rather than support, their emotional responses to a loved one's final days.
[A] bioethical mediator [would] help to identify all the parties and their interests, and develop a common understanding of the medical facts and options. For instance, consultants might be called in to finely tune a prognosis.
When coming into [a case], the [bioethical mediation] team asks: Who are the parties to this conflict? What are their interests? Are those interests in conflict and, if so, how might the conflict be resolved or consensus forged? This formulation grew out of the clinical finding that most of the events labeled "bioethical dilemmas" were really "conflicts" that pitted members of the hospital team against each other, or members of the team against some or all of the patient/family constellation.
The Creation and Use of an ADR-Oriented Ethics Committee
Membership: . . . . What is indispensable is that the panel not be insiders. If having physicians sit on the panel is seen as essential, it may be useful to use physicians who teach at local medical schools or who do not practice at that particular hospital. . . . . .
Initiation: In keeping with the sequencing of low- to high-cost methods of dispute resolution, the process should be initiated at the request of the patient, her family, any member of the health care team, or the bioethical mediator if he or she is unsatisfied with the resolution at Step 2.
Methodology: Here there is a spectrum of formality that will depend on the individual hospital and its resources, ranging from advisory arbitration to mini-trial. In principle, there is no reason why the Committee might not offer multiple options along the spectrum of formality at the election of the parties. Depending on the level of formality chosen, the parties might represent themselves or seek legal representation.
Opinion: This should be delivered in writing, be well elaborated, and be the kind of opinion that can give the parties information relevant to how a court might decide the dispute.
Bindingness: What is essential is that someone present at the arbitration process has the authority to bind the hospital. If power imbalances favoring the hospital are a concern in the process, one possibility to "retilt" the system might be to make the arbitration "asymmetrically binding," making the hospital abide by the arbitration decision while the opposing parties are not equivalently bound. If there are concerns about this, some kind of safety valve could be provided. For instance, the binding nature of the Ethics Committee decision could be overruled by a majority vote of the Hospital's board of directors.
Having used Terri Schiavo's case as a jumping off point, Cohen suggests that the experience of her care-givers, elevated for a time into a national controversy (see Cloke above)
highlights what each of us fears about our own deaths: that we will not die with dignity, that our wishes may not be followed, that decisions on our treatment may tear apart our families and bring rancor to the lives of those we love. Terry Schiavo's case also shows that in quelling our fears, the adjudicatory model offers scant succor.
While in theory, advanced directives offer a promising resting point for American jurisprudence's unsatisfying oscillation between full-on adjudication and completely private determination, in practice they have never caught on. The ideas and techniques ADR has
cultivated over the last thirty years offer us, and our families, a chance to do better. ADR can:
Help to resolve "misunderstandings" that the adjudicatory model tends to treat as full-blown "disputes;"
Identify intermediate options that satisfy both parties and remove the need for rights-oriented dispute resolution;
Offer a lower-cost form of rights-oriented adjudication when a dispute must be "decided;"
Enable the patient and free him from the debilitating "object" status accorded to him by adjudication; and
Offer emotional settlement lacking in the typical litigation process.
Concerns about cost, due process protection, and institutional resistance to implementing such an approach add complexity, but this article has suggested possible approaches to solve those problems. Moreover, these concerns have to be compared to those attaching to the status quo regime that consists of large amounts of "lumping" it. While the details of an appropriate ADR framework will vary from institution to institution, this article has offered a five-step model for implementing an ADR-informed approach to end of life decision-making, as well as discussing alternative options at every stage. It is only by
combining the work of fields such as medicine, law, and organizational development that we are able to provide a thing of major concern to the aging population of America: the assurance of dying well.
(left: Dad, middle, after the dust bowl in Julian, California)
I am told that my father is dying. This is not news. Dad has a progressive disease that ordinarily results in death only after years of suffering.
I'm telling you this story (which will be the subject of several posts) because it's been suggested to me that I lodge a complaint with the local community hospital dad was checked into last week. Or that I sue the doctor who will play a large role in this story. I'm thus reminded of the type of conflict that causes people to go to the considerable trouble of finding and hiring legal counsel. The experience I am about to relate considerably deepens my empathy for those people.
Before I tell this story, I caution my readers not to take the easy way out. These feelings accompany every kind of conflict -- personal and commercial.
Essential Familial Tremor
Most of us on Dad's side of the family have something called Essential Familial Tremor. That means our hands shake for reasons the medical community doesn't understand.
Because denial was and remains my family's primary response to ill health , I was not diagnosed with this condition until I graduated from law school even though I began to suffer its effects at age 14. When your primary family dis-ease is denial, it's more than a little painfully ironic to have a shared medical condition that quite visibly signals fear. But wesurvivedthe American dust bowl. We do not complain. And we do not seek medical treatment.
EFT and Parkinson's
I digress to EFT and denial because the "benign symptom" of EFT -- shaking -- is the same as one of the early symptoms of the disease Dad is dying from. Parkinson's.
For as long as I can remember, Dad's hands shook though my my step-mother (welcome to the family!) vehemently denied it. "He doesn't shake," she'd snap if we noted dad's inability to get liquid from one container into another without spilling a fair part of it onto the dining table.
So I can't say when Dad began to show the earliest signs of Parkinson's disease. I can, however, say when it became undeniable.
"I Left Your Step-Mother,"
dad is saying into a telephone I've just learned is located on the night-stand next to his bed in a Las Vegas hotel. "She's sleeping with the gardener," he insists without a trace of skepticism at the fantastic idea that his second wife -- a woman ten years his senior -- has fallen into trampy ways with the "help" at 85 years of age. "I think my phone is tapped," he continues without interruption. "I'm going to fly to Sacramento to see my sister Lucille."
This is the point at which my family is generally willing to first seek medical treatment. Unmitigated disaster.
So I sought and was granted (against strenuous opposition, I might somewhat irritably add) a continuance of a trial date that was breathing hot down the back of my neck, boarded a plane for Sacramento and got dad to doctors, psychologists and neurologists.
Parkinson's is treatable and the dementia abated for a sufficient amount of time to allow dad to pretty cogently divorce his second wife of 35 years and marry the woman who served as his court clerk when he'd been on the bench two decades earlier.
Nearly every condominium complex harbors an outlaw -- the man, woman, couple or family who refuse to follow the rules. The young couple who blasts the woofers off their stereo system at 3 a.m. The elderly woman who doesn't clean up after her dog. The raucous family that plays "Marco Polo" in the community pool after midnight.
Offended and outraged, other homeowners make demands on their volunteer board who contact the (often unresponsive) management company. The HOA board does its best. It issues warnings to procure compliance. To no avail. Eventually, someone reads the CC&R's. They learn that the Board has enforceable legal duties and the homeoweners actionable legal rights.
Welcome to community mediation -- the non-zero sum, value-based, rights-seeking, joint session transformative dispute resolution process. We're well trained and we're free.
But can we deliver justice?
Attorneys, the Law, Mediation and Justice
Maybe it was just my G-g-g-generation, but I went to law school primarily because I was interested in the delivery of justice. Although my primary involvement in the 20th Century 's civil rights movements was as a Vista volunteer at an activist women's center in San Diego in the early 1970's, I wasn't simply pursuing my own narrow self-interests when I applied to law school.
As early as I can recall -- long before I'd conclude that 1950's and '60s women were oppressed -- I'd already developed a deep longing for the reconstruction of adult relationships along the lines of fairness. This must be atypical childhood longing premised upon our predicament of being physically small and powerless. An "unjust" world that rewards only power would not ensure our survival while a world in which everyone is valued and treated fairly would.
Couple a child's sense of justice with televised images of "the law" aiming fire-hoses at peacefully demonstrating "Negroes" and you get a life-long commitment not simply to the "rule of law" but to the necessity for that "rule" to be premised upon justice.
Are Negotiated and Mediated Resolutions Trumping Justice?
These are just a few of the reasons it troubles me so when scholars suggest that mediated and negotiated resolutions to litigated disputes are unjust. Seeyesterday's post here and the article that prompted it, Justice Trumps Peace (etc.) here. If mediation is truly what its critics contend it to be -- a full-frontal assault upon the rights gained by marginalized citizens during the Civil Rights era -- I'm in serious moral trouble here.
Consider this contention in Justice Trumps Peace:
“ADR rhetoric” reinforce[s] a conservative challenge to “the law and reform discourse of the 1960s, a discourse concerned with justice and root causes, and with debates over right and wrong.” “The rights theme, consistent throughout earlier debates over legal resources,” was conspicuous by its absence in “the policy discussion on alternative dispute resolution.” . . . .
Laura Nader . . . not[ed] that ADR’s “process of communication” ethos took necessary rough, ideological edges off claims, and fostered what she called “coercive harmony.” Nader argued that ADR was permeated with “conformist ideology,” which was employed to “suppress the realities of class, gender, and racial antagonism” endemic to American society, and as such, it comprised an “unreal law movement.” Nader contended that ADR’s emphasis on conciliation meant that critical considerations of “blame or rights” were “avoided and replaced by the rhetoric of compromise and relationship.” She concluded that “cultural notions of justice are factored out.”
This tendency to screen-out unpleasant, divisive, but nonetheless vital social concerns supports Fiss’s characterization of ADR as a “sociologically impoverished universe,” in which critical issues of class, race and gender are subsumed to construct “a world composed exclusively of individuals.”
Rawls asked us to think of justice as a matter of agreement. He suggested that we think of the principles guiding a just society as the ones that individuals would agree to -- with the crucial proviso that they do not know where they themselves would end up in society, on the top or the bottom. They would thus act from behind a "veil of ignorance . . . Given this constraint, no individual could tailor the principles of justice to his or her special talents or circumstances, which is why Rawls called this approach "justice as fairness." Rawls suggested that the principles that would be agreed to would be ones that were deeply committed ot basic human rights and had a strong presumption in favor of economic equality. Inequalities would only be tolerated if they most greatly benefited the least well off.
According to Ryan, Rawls concluded in his later writings that the reciprocity inherent in bargained-for resolutions and negotiation's search for mutual advantage were insufficient to ensure justice. Rawls therefore shifted the basis of his theory from the search for rational resolutions to the implementation of reasonable ones. "The question to ask of principles of justice," posited Rawls, was,
what were the most reasonable ones for people to agree to given the nature of our society and the nature of who we are? Justice, thus reconceived, lost the harsh individualism that Rawls' earlier theory seemed to possess. The stress on reasonableness meant that people taking others into account was an essential part of what justice was all about. His theory also moved away from his earlier hyper-abstraction, insofar as we talk of what is "reasonable" invariably refers not to some hypotheitcal persons with hypotheical aims but to real people -- in this case, us, here and now.
John Jones had practically memorized the CC&R's governing the Board's duties and the homeowner's rights. His wife repeatedly broke into tears as she described sleepless nights spent on the living room couch where the upstairs neighbor's early morning antics were the least disturbing. The volunteer Board member was sympathetic but at a loss for solutions. She'd contacted "management" and sent warnings to the miscreants, all to no avail.
Only punitive measures would do at this point, said Jones. The CC&R's called for sanctions to be imposed on rule-breakers but lacked a means of implementation and enforcement. The HOA representative indicated that she not only had the Board's authority to settle the matter, but to impose any necessary and reasonable rules to flesh out the CC&R's inadequate policies.
"We want monetary sanctions imposed," Jones was saying, "sanctions that can be made liens against the property just as HOA dues can be."
"What about notice?" I asked. "And a hearing? There's nothing in the rules about the procedure for imposing sanctions."
"24 hours!" shouted John. "If they don't comply, a $500 sanction to be made a lien against their property. And another $500 for every day they continue to violate the noise restrictions contained in the CCR's."
Not knowing about Rawls' veil-of-ignorance-just-rule-making principle, I nevertheless wondered aloud whether Mr. and Mrs. Jones understood that the bylaws they were suggesting could be used by their scofflaw neighbors as easily as they could be pursued by the Jones.
"What set of rules do you think would be fair?" I asked.
Two hours later, we had achieved what my Con Law professor would have called "procedural due process" -- a set of rules that would likely pass Constitutional muster that camefrom the parties -- not from the mediator.
Whether justice and fairness are, at some level, hard-wired into us (see Brain reacts to fairness as it does to money and chocolate) or culturally controlled, it seems that Rawls' conception of "justice and fairness" based upon reasonableness and enlightened self-interest might flow more or less naturally from a mediated dispute resolution forum where the parties, rather than the mediator, are in control.
I'm asked this morning by an ADR colleague whether we can criticize diversity without sounding like racists. The question itself is problematic because it not only assumes a racial divide, it places "us" on the "white" side of it.
introducing supplier diversity to the ADR profession [by] extend[ing] business opportunities to certified minority and women ADR neutrals. These efforts, coined as "second tier," allow Shell to influence prime or majority ADR firms, with whom they do business, to also contract with minority and women owned ADR firms within the business community.
In the upcoming months Shell will be targeting . . . ADR services to participate in second tier efforts. Shell astutely recognizes that by embracing the concept of inclusion, the company will rise to a higher level, reflecting its belief that it "will benefit from diversity through better relationships with customers, suppliers, partners, employees, government and other stakeholders, with positive impact on the bottom line."
I'm assuming that my questioner does not agree with the "affirmative action" aspect of this program. Having debated the affirmative action issue since I began law school at U.C. Davis where the Supreme Court Bakke decision originated, I know well how divisive this issue can be. But it is an important issue -- an issue critical to a nation not only "conceived in liberty" but "dedicated to the proposition that all men (sic) are created equal."
So Let's Take a Look at ADR and Diversity
I'll ask the academics over at the ADR Prof Blog to correct me if I'm wrong.
I understand the academic criticism of mediation to be this: in the immediate post-civil rights era while greater legal protections have been afforded to women and under-represented minorities, the "people" have been channeled into a system -- mediation -- that lacks the prejudice-flattening constraints of the rule of law. More disturbing, say critics, is the fact that this "lawless" system is largely presided over by -- excuse me if this offends anyone -- OLD WHITE MEN.
I've learned more about racial bias talking to my liberal (white) "unprejudiced" friends this election season than I have since I participated in the "second wave" women's movement in the early nineteen seventies (remember consciousness raising?) I do not judge them, nor myself, for our necessarily limited view which just happens to be that of the dominant culture.
I know we still have a serious racial divide because when I talk to my educated and liberal African American friends they say things that shock me. Things like -- the U.S. may have started the AIDS epidemic to rid the world of Africans. OK. I get it. There's something about their experience of America that is so radically different from mine that I think their point of view is, frankly, just a little nuts. This is what I do know -- I will never truly be able to see the world from their point of view.
That said, I do think we can criticize people for taking advantage of "diversity" issues to forward an agenda -- or their own personal advancement -- other than forwarding diversity itself. We can criticize those who would deepen the divide to profit from it.
If I could write a sentence in a circle at this point, instead of linearly as the language requires me to do, I would do so. Here is what I understood Obama's response to the question of the racial divide in America to be.
Acknowledge it Heal it Move on Heal it Move on Acknowledge itMove On Heal it Acknowledge it
There are no periods in this sentence because this activity needs to be constant and on-going. Because we will always be stuck in our own point of view. Because in-group and out-group prejudice will always be with us. And because the more visible markers there are for "otherness" in others, the more prey we are to the error of dividing the world into "us" and 'them."
The answer? Diversity. Vigilance. Education.
Toward that end, here are some ADR Diversity resources:
Center for Dispute Resolution, whose mission is to "to promote and provide education and comprehensive approaches to dispute resolution that constructively serve the needs of our culturally diverse society."
As information is learned in a given case, great trial lawyers also tell their client the truth. They give an opinion about whether to make, accept or reject a settlement proposal, or indicate that the proposal is so within the range of reason to make it a toss-up. They give these honest opinions whether the client likes the advice or not, and explain the basis for the opinion.
A great trial lawyer will not hesitate to tell a client that the client is making a mistake by not taking a recommendation of the lawyer, but then will follow the client's wishes so long as the course of action is legal and ethical.
In other words, great trial lawyers understand that client is the boss, and unless the client is demanding illegal or unethical action or the relationship between lawyer and client has become so impaired that the lawyer cannot adequately represent the client, the lawyer yields to the client's wishes.
1. Steadfast adherence to a strict moral or ethical code. 2. The state of being unimpaired; soundness. 3. The quality or condition of being whole or undivided; completeness. ETYMOLOGY: Middle English integrite, from Old French, from Latin integrits, soundness, from integer, whole, complete.
I attended a seminar recently in which a retired Judge-mediator said the following from the podium -- "I don't tell a new client that I've mediated for his opposition before."
"Hmmmmmmm," I was thinking, "how's he going to justify that?"
The answer, unfortunately, was by way of his own self-interest.
"If I disclosed all of my former relationships with attorneys," the Judge said, "I'd never get any new business."
I know this mediator; he's in heavy rotation and is a talkative guy. So I'm assuming he's said this before and no one has corrected him, which means he's not the only one out there who's a little fuzzy on mediation ethics.
A. A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation. A conflict of interest can arise from involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and any mediation participant, whether past or present, personal or professional, that reasonably raises a question of a mediator’s impartiality.
B. A mediator shall make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for a mediator. A mediator’s actions necessary to accomplish a reasonable inquiry into potential conflicts of interest may vary based on practice context.
C. A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality. After disclosure, if all parties agree, the mediator may proceed with the mediation.
D. If a mediator learns any fact after accepting a mediation that raises a question with respect to that mediator’s service creating a potential or actual conflict of interest, the mediator shall disclose it as quickly as practicable. After disclosure, if all parties agree, the mediator may proceed with the mediation.
E. If a mediator’s conflict of interest might reasonably be viewed as undermining the integrity of the mediation, a mediator shall withdraw from or decline to proceed with the mediation regardless of the expressed desire or agreement of the parties to the contrary.
F. Subsequent to a mediation, a mediator shall not establish another relationship with any of the participants in any matter that would raise questions about the integrity of the mediation. When a mediator develops personal or professional relationships with parties, other individuals or organizations following a mediation in which they were involved, the mediator should consider factors such as time elapsed following the mediation, the nature of the relationships established, and services offered when determining whether the relationships might create a perceived or actual conflict of interest.
Easter is one of those holidays that resists secularization unless you have children, grandchildren, hard boiled eggs and a rainbow of pastel dyes.
People don't casually say "Happy Easter" to one another, particularly in an urban American city and especially if half your family is Jewish.
Still, Easter reminds me that I used to be a practicing Protestant and that my values derive substantially from the liberal Christian teachings I was dipped into as a child -- first in Sunday School and then in church.
What did I learn? Tolerance. Compassion. Empathy. Forgiveness. Reconciliation. And perhaps most important of all, the genuine potential for every ordinary human spirit to experience a radical transformation -- so radical that one might say the individual had been reborn as a spiritual being.
Listen, this is not light weight stuff.
I like to write, but I'm no philosopher. Nor am I writer with a huge brain, steadily empathic heart, encyclopedic knowledge, original thought or the courage to dream paradigm shifting dreams. I do know that writer, however. His name is Ken Cloke and I am steadily making my way through all 500 and something pages of his new book.
These are the times to put our own individual highly personal spiritual or religious faith and a great deal of our material resources behind the transformation of human understanding necessary to save the species.(as James Lovelock , author of Gaia instructed us, we have no need to worry about the persistence of the planet itself. We are not necessary to its survival; we are merely its "spokesmodels.")
Prejudice is complex and operates on many levels. It can be found not only in insults and judgments, caricatures and stereotypes, but refusals to listen and communicate, stories of demonization and victimization, inability to experience empathy with others, and infinitesimal denials of humanity. It is reflected in personal selfishness and hostile relationships, bullying and aggressive behaviors, and ego compensations based on poor self-esteem. It is expressed through contempt, disregard, and domination, as well as through low status, inequitable pay, and autocratic power.
Prejudice commonly operates by stereotyping. People form stereotypes, in my experience, in eight easy steps:
1. Pick a characteristic
2. Blow it out of proportion
3. Collapse the person into the characteristic
4. Ignore individual differences and variations
5. Disregard subtleties and complexities
6. Overlook commonalities
7. Match it to your own worst fears
8. Make it cruel
If these steps routinely produce prejudice, it is possible to undo them, for example, by making people more complex than their stereotype permits, or distinguishing unique individuals within a group, or recognizing commonalities between people. It helps, in doing so, to acknowledge that everyone is equal, unique, and interesting; that everyone forms prejudices; that everyone can learn to overcome them through awareness, empathy, and communication; and that everyone can become more skillful in communicating across stereotypes and lines of separation created by fear.
It is common for people, when accused of prejudice, to respond defensively, but to confront other people’s prejudices aggressively, leveling accusations and instilling shame. These responses may initially succeed in suppressing the expression of prejudicial attitudes and undermining social permission and the cultures of discrimination that allow it to continue. But to root out the deep-seated biases that keep prejudice alive, it is necessary to dismantle it at a deeper level, in people’s hearts and minds.
Our principal goals in responding to prejudice are therefore not to castigate, blame, or point fingers at those who exhibit prejudicial attitudes, as shaming and blaming merely triggers defensiveness and counterattack. Instead, they are to defuse prejudice by assisting those in its grip (including ourselves) to:
develop a knowledgeable, confident self-identity, and appreciate who they are without needing to feel superior to others
experience comfortable, empathetic interactions with diverse people and ideas
be curious and unafraid of learning about differences and commonalities
feel comfortable collaboratively solving problems and negotiating differences
be aware of biases, stereotypes, and discrimination when they occur
stand up for themselves and others in the face of prejudice, without becoming biased in turn
experience diverse affectionate relationships that grow stronger as a result of differences
Soon, the Complete Lawyer'sHuman Factor Columnists (first appearance, Vol. IV, Issue 2 /*) are going to be addressing the ways in which you can use conflict resolution techniques to create, or restore, peace in your law firm.
Though my contribution to that particular column is slicing the law firm's money pie with an eye toward the collective good rather than the individual's advantage, I can't pass up the opportunity to note the importance of accountability -- one of mediation's core values -- covered by The Snark in -- Oops! An Associate Did it Again (excerpt below).
This is the hardest plan to implement because you fear finally being discovered for being imperfect and possibly over-rated. Will you be fired? Will it go down in your "file" only to rear its head in four years when you are denied admission into the partnership and the only reason they can give is, "Back in your second year, you missed that 1 p.m. meeting with our best client, MegaCorp."
But I think in the end it is better to fess up. Just don't do it in a way that makes things even worse: no crying, sniveling or begging for mercy. And no need to shave your head or hold a press conference.
You just need to explain yourself while displaying the appropriate level of remorse blended with confidence that says, "Yes, I screwed up that once, but it was an uncommon lapse that will be rectified. I will work even harder and bill a few extra hours to make up for lost faith in my value."
Provided your mistake didn't actually cause lost revenue or client relationships, you likely will be forgiven. But don't let it happen again. You get paid way too much money to make mistakes.
BigLaw or Small, You are Not a "Cog"
I know the Snark's column is meant to be witty, sarcastic, ironic, snide, and all of that, but the demeaning reference to BigLaw associates as "Cogs" is unfortunately reflective of some young lawyers' felt reality. (Remember Jonathan Swift'sModest Proposal -- eat the poor? It's not a joke)
Here is my advice to every first year associate at every law firm in the country -- be it a Two-Person Enterprise or a Ginormous BigLaw Endeavor:
NOT ONLY ARE YOU NOT A COG, YOU DO NOT WORK FOR THE LAW FIRM
You WORK for the client. If your "boss" or your firm is not helping you do that to the highest level of your own abilities, then he/she is simply the guy/gal you need to circumvent so that you can give your client the best legal advice and services available.
THE BUCK STOPS WITH YOU.
You are a lawyer, with a lawyer's professional responsibilities and the right to be respected for the highly educated, skilled and semi-trained professional you are.
Don't let anyone fool you. You are not only important, you have power. And with power comes accountability.
Crystal and Keith /* are the unmarried parents of a seven year old girl, Taniyah. They have sought the services of the West Hollywood community mediation center because they want to discuss the resolution of their custody dispute outside the presence of their attorneys.
After introductions, Keith and Crystal push a proposed settlement agreement across the conference table. They are shy with one another but united in their desire to reach agreement without any pressure from "The Attorneys."
Two hours later, we are at item no. 23 -- "neither Parent nor either set of grandparents shall physically strike The Child at any time."
"Is this a provision you agree with?" I ask. "It means you can never slap Taniyah's hand," I add. "Is that something you want to agree to?"
"We don't have a choice," says Crystal. Keith nods in assent.
I let the word "choice" hang in the air for a moment as I begin to understand why these two bright, well-educated and articulate young parents have so reluctantly given their meek and mutual approval to every previous item they said they came to the mediation center to discuss.
The Shadow Conflict
I put the "proposed" agreement aside.
"Why don't you have a choice?"
"Because Taniyah's attorney put this into the agreement," says Keith as Crystal nods in agreement, repeating Keith's remark "we don't have any choice."
Taniyah has an attorney, I learn, because Keith's mother -- one of Taniyah's primary caretakers -- left Taniyah at home with her nine-year old cousin, Arabelle to run an errand. Arabelle, a curious child, led Taniyah on an expedition to her grandparents' bedroom where the two found a stash of light porn -- Playboy and the like. That, I'm told, is the only reason Taniyah has an attorney.
It quickly becomes apparent that Crystal and Keith simply assume that Taniyah's attorney is a decision-maker. I'm still considering how to approach this problem when Keith asks the question that leads to the resolution of the "shadow" dispute between the parents and Taniyah's attorney.
"How do we get our power back?"
Justice, Mediation and the Rule of Law
I tell this lengthy story as preface to another from this weekend's Mediators Beyond Borders Founding Congress. Yesterday, someone suggested from the podium that we should include mediation and arbitration agreements in our own contracts with our own clients.
I raised my hand.
"Why," I asked, "do you want to restrict our clients' access to the justice system?" once again demonstrating a fractious lack of diplomacy that makes some people wonder how I could possibly be an effective mediator. /**
It wasn't a well-placed question but it is of a type I often find myself more or less compelled to shoe-horn into any conversation that assumes mediation is best for other people.
A number of scholars have pointed out the danger lying in an ideology of harmony related to ADR where agreement is seen as the panacea in every conflict.
They have argued that mediation was essentially supported by [the] middle upper class and social scientists whereas people . . . involved in conflicts[, including the] working class were expecting law and rights to protect them.
Emphasizing free choice, individualism, autonomy and advantage, and assuming instrumental rather than normative and religious orientations of social action, the concept [of mediation as an ideal form of dispute resolution] seems to describe the culture of professional elites rather than of residents of these urban/ethnic neighborhoods.
As Abel has stated, "there is considerable evidence that people want authority rather than informality. They want the leverage of state power to obtain the redress they believe is theirs by right, not a compromise that purports to restore a social peace that never existed."
According to those scholars, ADR could serve as a means of control and domination in keeping and reinforcing power relations. For instance, Milner Ball has defined ADR as "another form of the deregulation movement, one that permits private actors with powerful economic interests to pursue self-interest free of community norms. "
They argue that in traditional societies . . . mediation is used [when] there is no danger of retaliation from the weaker party. The . . . focus on relationships [diminishes the parties' focus on] justice[;] individual satisfaction has become the main purpose of conflict resolution.
Although they are conscious of the paradoxes of Law which can either "symbolize justice or conceal repression, reduce exploitation or facilitate it, prohibit the abuse of power or disguise abuse in procedural forms, promote equality, or sustain inequality, they argue that "Without legal power, the imbalance between aggrieved individuals and corporations or government agencies cannot be redressed".
* I have changed the parents' names and merged two separate mediations in the interest of confidentiality.
** The answer to this question is as follows: I am not mediating when I am engaged in discussion with friends and colleagues. Just as I do not observe the rules nor use the language of the courtroom at a dinner party, I do not observe the niceties of mediation in public discourse. It would be better if I did. I know that. I'm working on it and will post some insights about constructive public conversations on difficult and divisive topics in my next post.
The ABA Ethics Committee has given the green light to collaborative law agreements -- considered unethical in Colorado -- so long as the clients give their informed consent. See Putting a Kinder Face on Litigation. Excerpt below:
“When a client has given informed consent to a representation limited to collaborative negotiation toward settlement, the lawyer’s agreement to withdraw if the collaboration fails is not an agreement that impairs her ability to represent the client, but rather is consistent with the client’s limited goals for the representation.”
The oxymoron? Litigation is definitionally a "contentious tactic" pursued for the purpose of making someone else behave in a way they do not wish to behave == to pay money they do not want to pay; to accept less money than they are demanding for the injuries they claim to have suffered; to refrain from trespassing on your land or demonstrating on the street in front of your house or performing on a contract they contend does not require them to obey.
Why is litigation a "contentious" tactic? Because its entire purpose is to overcome the will of another. It is not an invitation to dinner to discuss the dispute in an attempt to find common ground. Does litigation sometimes lead to collaboration? Most certainly, as do other contentious tactics such as persuasive argumentation, ingratiation, and violence -- all of which can serve to bring the parties to the bargaining table.
I am all in favor of collaborative processes for the resolution of disputes. It's what I do for a living for heaven's sake. But I am also an advocate for the preservation of meaning in the English language. Collaborative litigation is a contradiction in terms. And if you want your client's informed consent to anything, it would be best to remember that the "litigation" part of collaboration remains the iron fist inside the velvet glove.
I've long been saying it will take a tragedy following services provided by unqualified mediators before the States will move in to set standards and require licensing. Here's the first breath that will stir the leaves of change in Sacramento.
Listen, this is an access to justice issue, not simply a problem that the legal profession -- particularly those legal professionals who are mediators -- can ignore.
"I don't do family law" or "I don't work with the kind of mid- to low-income people who can be taken advantage of in this manner," is no excuse.
This is an issue that we must now all join together in an attempt to vigorously address, retaining flexibility and creativity in the profession while at the same time preventing the practice of mediation by the unscrupulous.
I ask my readers to please weigh in on this issue. I do not have the time to spearhead this effort but will offer my services as a team member to immediately begin addressing the ways in which we can impose standards and retain independence.
For responses from other bloggers that are not included in the comments below, see the following:
Chris Annunziata's Thoughtful Opposition to Licensing here -- primarily arguing that licensure would not prevent abuse; and, would bring the weight of inefficient and intrusive state bureaucracies into the process. (But don't trust my summary; click on the link to get it direct from the horse's mouth)
This blog follows insurance coverage issues from time to time because insurance reimburses us for losses; litigation presumes loss; and, the negotiated resolution of litigation requires the parties to understand the benefits and limitations of everyone's insurance policies.
We also talk a lot about ethics here because people and businesses embroiled in litigation are -- contrary to popular belief -- seeking a just or equitable or fair or ethical resolution.
I cannot say this enough -- IT IS NEVER ONLY ABOUT MONEY.
I also have to tell you that I never once, not on a single occasion, in 25 years of legal practice, a decade of which was spent concentrating on insurance coverage issues, did I ever hear anyone ask whether any underwriting or claims practice was ethical!
Before weighing in, I'm going to just let this question percolate in my consciousness for awhile. If you go to the linked article, you'll see some thoughtful answers. Aside from a little predictable judge-bashing, the readers who paused to answer this question -- both from an underwriting and a claims perspective -- did so with a depth of understanding of the issues involved and the history of the clause at issue -- the one that is at the heart of the hurricane damage claims.
Claiming that the $4.85 billion Vioxx Settlement improperly "allows [defendant] Merck to dictate the advice a lawyer will offer" to clients, some Vioxx plaintiffs' attorneys have asked the federal judge overseeing the deal to "keep some of their clients outside the settlement while still allowing other clients to accept it."
Under the global settlement agreement reached by lead counsel in New Orleans last month, "if the lawyers want any of their clients to receive money from the settlement, they must recommend the deal to all their clients."
Those attorneys resisting the requirement are saying not only that the provision "would prevent them from offering the best independent judgment for each client" but that "[a]greeing to the provision might open them to future lawsuits from disgruntled clients."
The full post is well worth reading. Most applicable to my own practial ethics needs, however, is the following post excerpt.
None of the existing or proposed ethical codes, he writes,
address the relatively common and always difficult situations in which more than one ethical principle is implicated, and in which no course of action perfectly protects all of the mediation principles involved.
One party appears to have an imperfect understanding of some aspect of a deal, the other party is credibly indicating an intention to withdraw from the mediation, the conversation up to this point suggests that the issues appearing in the legal complaint are only one component of what’s going on and what each party cares about, the case is proceeding under brutal external time constraints, the media are making regular requests for updates, and the mediator isn’t sure what the best next steps might be.
That’s not just an ethical question, but there are ethical questions embedded in there. And nothing in most articulations of mediation ethical standards even acknowledges, much less guides, the balancing I must do.
Amen, brother and thanks for joining the conversation about ethics.
Gini Nelson is the founder and author of the Engaging Conflicts Blog. Gini received her law degree from George Washington University Law School in 1983 after teaching Social Problems at the University of Kansas while completing her MA in sociology.
Gini's practice includes mediation and settlement facilitation.
Gini, who posted her response to my request for comments on mediation ethics on her own blog here, did so before I noticed and after I make a few edits here. Any flaws in this version must therefore be laid at my door.
As a starting point, I echo the physicians' ancient ethical code as First, do no harm.
When we look at short lists of ethical obligations, this bedrock principle appears to undergird all of them -- most of which emphasize client determination and transparency. This list should be short and it should be clear.
The obligation to do no harm, however, must be distinguished from the aspirational goal of "doing good."
I am concerned about the blurring of lines between the two.
Is it our ethical duty, for instance, to advance the field of mediation, as much as we might aspire to do so?
Let's Take Pro Bono Services as an Example of an Aspirational Goal
I, for one, oppose mandatory "pro bono" services, whether the professionals being hauled into servitude are mediators, lawyers, physicians, accountants or interior decorators (as much as the world would benefit were it as aesthetically pleasing as, say, every shop window in Paris).
At least in New Mexico, however, we are not ethically required to provide pro bono services. We are only asked to aspire to provide them.
This professional aspirational goal leaves it up to the individual attorney to consider what she can afford in terms of time, money and energy when considering whether to provide her services for free. Despite the clarity with which this principle is expressed in New Mexico's Code of Professional Responsibility, I've sat in meetings with a combination of practicing attorneys, practicing mediators, state bar staff, court staff, and a judge where everyone was in complete accord on a mediator's ethical obligation to provide pro bono services.
Why the Problem?
When the people responsible for establishing and implementing court-annexed mediation programs misunderstand an aspiration as an ethical obligation, they feel free to incorporate mandatory pro bono mediation services in those programs. In New Mexico, most state and city, government and judicial ADR programs require their mediators to provide their services free of charge.
I understand the budgetary constraints these programs work with. At the same time, I believe a confusion of the professional aspiration to "do good" with the ethical obligation to "do no harm" provides principled justification for program designers to expect mediators to work for free.
This, of course, harms the solo practitioner who can seldom afford to provide the same scale of pro bono services that larger or richer offices can handle. Perhpas more importantly, it constitutes a continuing harm on the entire mediation field by demeaning the value of its practitioners' services.
This confusion also perhaps helps fuel some of the intolerance of other forms of practice that Diane writes about here.
First of all, bravo for raising such an interesting question. I am still mulling over the last one you raised about whether mediation seeks to do justice or only settle cases...
Here's my addition:
A mediation should, above all, protect and safegbuard the mediation process by allowing each participant to be fully heard and by facilitiating the full and fair opportunity to explore all possible options for resolution of the conflict presented.
I would also add the following:
A mediator should not
impose upon a disputant any settlement or resolution which is against his/her will or best interest.
knowingly encourage a settlement which is in itself illegal or immoral.
condone or knowingly permit the perpetuation of a fraud.
A mediator must assure that all settling parties are afforded a full opportunity to consider the implications of all settlement offers and demands and to reject any settlement offer which is not acceptable, after such a full and fair opportunity and consideration.
A mediator should at all times protect the free will of the disputants in both the process and the ultimate outcome of a conflict's resolution by providing careful and thoughtful explanation of the offer and demand as well as all implications and consequences of accepting or rejecting the negotiated terms.
The JAMS standards that you link to are similar but not identical to the standards of conduct promulgated by numerous other organizations and professional associations for mediators. As a practitioner in Massachusetts, I adhere to a combination of several standards that apply to my work.
In brief, they include self-determination by parties; impartiality of the neutral; avoidance of conflicts of interest; competence of the neutral; confidentiality; responsibility for the quality of the process; truthfulness in advertising and solicitation; accuracy of information regarding fees and other charges; and, the advancement of mediation practice.
Responsibility to Improve the Profession
That last duty I'd like to underscore, since it's one that I increasingly see mediators ignore or, worse, spurn. It calls upon mediators to advance the practice of mediation by, among other things, fostering diversity, mentoring new mediators, and -- here's the important one:
A mediator should demonstrate respect for differing points of view within the field, seek to learn from other mediators and work together with other mediators to improve the profession and better serve people in conflict.
To me that means not only respecting the various models of mediation practice that abound, but to resist the temptation to label some mediators as superior or inferior to other mediators on the basis of practice area or profession of origin. We've got to stop putting each other down, folks.
Uniform Rules of Dispute Resolution
I also mediate within the Massachusetts courts which require neutrals to observe the Uniform Rules on Dispute Resolution. Rule 9 of the Uniform Rules spells out a mediator's ethical duties which include impartiality; freedom from conflicts of interest; informed consent; disclosure of fees; confidentiality; truthfulness in advertising and solicitation; responsibility to non-participating third parties (children in a divorce case, for example, or the public and public safety in a dispute involving a public construction project); and, requirements for withdrawal.
Some points to note about these rules.
Rule 9(c), Informed Consent, prohibits mediators from providing legal advice and coercing the parties to settle.
I think this is critical, since the prohibition on providing legal advice underscores that the mediator's role is to facilitate negotiation and decision-making, not to serve as advocate. I also agree with its prohibition on coercion, which strips the parties of the power and the right to make their own decisions free from pressure by the mediator or the agenda of the court -- both of which may have an interest in obtaining the settlement of as many cases as possible.
This places the needs of the parties front and center, not as mere afterthought.
These rules require mediators to clarify for parties the difference between mediation and other processes such as litigation, arbitration, negotiation through lawyers, and therapy; and that they encourage parties to seek professional advice such as legal, financial, therapeutic, or marriage counseling.
A substantial number of my family mediation clients are not represented by counsel. Because it's easy for unrepresented parties to be confused about the mediator's role, I take great care to emphasize that my role is to mediate -- and that I will not be their lawyer, will not and cannot represent them, and will not provide legal advice -- and take care to explain the difference between a mediator and a lawyer. I would do this even if the Massachusetts Rules of Professional Conduct, Rule 2.4, "Lawyer Serving as Third Party Neutral", didn't require me to do it.
All of these various bodies of ethical rules and duties guide my conduct at the mediation table, Vickie.
But there's another ethical duty that I honor.
I don't think you'll find it formally recorded in our professional canon, but it's this: connect with other mediators.
I am fortunate to have a network of trusted friends and colleagues (and of course bloggers) in the mediation profession to whom I turn when an ethical dilemma confronts me. We need each other.
It's one reason why ABA Section on Dispute Resolution's Model Standards of Conduct Standard IX, Advancement of Mediation Practice, resonates so strongly with me. Not only do we benefit as individuals, but we benefit collectively when we work together to improve our practice.
The highly unusual agreement not only requires 85% of plaintiffs to agree before it can be finalized but also might unduly force some claimants to settle or risk losing their lawyer.
That's because the deal includes highly unusual restrictions on plaintiffs' lawyers. The settlement requires them to recommend the deal to all of their clients or none. In addition, lawyers must stop representing any clients who turn it down as long as they don't violate ethics rules.
The agreement was hammered out by Merck and a committee of top trial lawyers who represent Vioxx claimants. Lawyers for both sides said it was a good deal because it provided immediate and fair compensation instead of lengthy trials with uncertain outcomes. Merck requested the all-or-nothing conditions because it feared lawyers would settle weaker cases and cherry-pick stronger ones for trial and possible higher payouts.
Clients are not inventory that lawyers can just shed when they become inconvenient. It's forbidden.
Local trial attorney Tom Girardi, however, who took at least one 'bellwether' Vioxx case to a jury verdict before Assistant Supervising Complex Court Judge Victoria Chaney in Los Angeles earlier this year, notes that it is
always the clients' decision to accept a settlement or not, and lawyers aren't going to do anything that's unethical [and that] those considering [whether to accept the offer] should know these are not easy cases to try in court.
So is a Mass Tort Injustice on the Horizon? Not Likely.
The law -- and the contract between attorney and client -- gives both the right to withdraw from the attorney-client relationship for any or no reason. Generally, however, the relationship continues unless the same type of "irreconcilable differences" that permit husband and wife to divorce, arise between counsel and client.
One of the most common reasons for the dissolution of the attorney-client relationship is a disagreement over settlement. The attorney is not, of course, the client's indentured servant and the client is neither chattel nor "inventory."
If the attorney believes the client has been offered a settlement that is a better alternative to further litigation and trial, he would dishonor his ethical obligation if he didn't say so. If the client disagrees and their difference of opinion cannot be resolved, they separate.
The only ethical requirements on the part of the attorney in this circumstance are: (1) not to abandon the client or separate at a time when it would cause harm, i.e., bowing out on the eve of trial; and, (2) not putting the attorney's own interests above those of the client.
This is where that pesky contingency fee comes in.
Any attorney who has a one-third to fifty percent financial interest in a settlement reached or judgment entered in his client's case will often appear to have a financial interest that conflicts with his client's. This apparent conflict, however, is actually more of a guard against unnecessary litigation than the defense lawyers' practice of charging their clients an hourly fee.
A contingency attorney lives or dies by his ability to assess the risk of victory or loss and maximize the value of the threat of further litigation and trial to the defendant.
When the contingency fee intersects with mass tort practice, however, common daily practice is writ so large that the tension between attorney and client that accompanies all personal injury litigation can be made to look like injustice -- clients as inventory and attorneys as self-serving monsters.
Let's Talk About the Risks in the Real World
Tom Girardi, after trying a brilliant case to the jury in Judge Chaney's courtroom, lost to Merck. In closing, Merck's attorney argued to the jury that Tom's client was "all in" based upon his testimony about the number of Vioxx tablets he'd taken.
Clients, however, just like any other fallible human beings, "forget" or dissemble. Whatever the Plaintiff's "true" recollection, the pharmacy records proved otherwise. He had not only not taken the number of Vioxx tablets prescribed -- his recollection of how many he took was not even close.
Can the Vioxx attorneys predict victory? No. Can Merck? Nope. Did both sides take their best shot at trying a couple of dozen cases at enormous expense. I think so.
Is there an ethical problem here? Not likely. These are some of the best personal injury trial attorneys in the country. And they don't get that reputation by settling their clients' claims for less than they're worth.