Category Archives: Lawyers, Law and Justice

Court-connected mediation in Massachusetts another casualty of tough economy

A door to justice closes in Massachusetts courtsIn news that has stunned the alternative dispute resolution community in Massachusetts, the Massachusetts Trial Court has terminated its mediation contracts with programs approved to provide services in courts throughout the Commonwealth.

This move comes in response to the decision by Massachusetts governor Deval Patrick to order deep cuts in the state budget to offset a projected revenue shortfall of roughly $1 billion. Mediation programs are but one more casualty of the fiscal crisis Massachusetts, like many other states around the U.S., currently faces.

As a mediator — particularly one who devoted time to promoting the use of court-connected ADR as a member of the Trial Court Standing Committee on Dispute Resolution — I feel this blow acutely. It dismays me to see mediation devalued in this way. It is, in Massachusetts at least, expendable not essential.

Fortunately, elsewhere in the U.S., courts are ramping up their commitment to ADR, not downsizing it. Examples include foreclosure mediation programs rolled out in New Jersey, Ohio, and Florida.

How disappointing to learn that Massachusetts, the place where ADR pioneer Frank Sander had his vision of the multi-door courthouse, has elected to slam shut one doorway to justice.

Latest issue of The Complete Lawyer – and the ADR column "Human Factor" – now available

The Complete LawyerThe latest issue of The Complete Lawyer, an online journal focusing on quality of life and career satisfaction for attorneys, is now available — and along with it, its special ADR column, “The Human Factor“. This issue of The Complete Lawyer asks, “What’s your exit strategy?” and looks at how best to plan financially and emotionally for retirement.

The Human Factor“ focuses on ADR from the perspective of four attorneys who mediate – me and my three extraordinary colleagues, Stephanie West Allen of Idealawg and Brains on Purpose, Gini Nelson of Engaging Conflicts, and Victoria Pynchon of Settle It Now Negotiation Blog.

This time in “The Human Factor” the four of us discuss “What we have learned from mediation and negotiation that can have very broad application in your life and work“.

The Complete Lawyer is published by Don Hutcheson, to whom the four of us owe a debt of gratitude for allowing us a forum for our ideas. Thanks, Don.

Whose opinion counts: should clients, not lawyers, be the ones to evaluate mediators?

my two centsTwo respected thinkers in the mediation field, Leonard Riskin and Nancy Welsh, recently made available on the Social Science Research Network an advance copy of the law review article they co-authored, titled, “Is that All There is? The ‘Problem’ in Court-Oriented Mediation“. It takes a long, thoughtful look at the failure of court-connected mediation to fulfill its early promises and the extent to which it increasingly ignores the needs and interests of the clients at the heart of the case:

In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and other ordinary civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues predominate; other potential issues – personal, psychological, relational, communitarian – disappear.

While mediation may meet the expectations of the repeat players, it fails to honor those of the one-shot player — the client. Riskin and Welsh describe what this signified for one couple struggling with tragedy who had sued a hospital and a doctor for negligence in the medical care provided at the time of the birth of their son:

The mediation processes failed to consider the [couple's] mediation-related core concerns. The procedural choices made by the lawyers and (apparently) not questioned by the mediators — that Donna and Tony would not attend or speak in most of the joint sessions, and that they would have no role in deciding upon procedures or subjects of discussion for the mediation — ignored their mediation-related core concerns of autonomy, status, and role…In stark contrast, the mediations were structured to address the core concerns of the repeat players, particularly the lawyers, both within and outside the mediation.

While I happened to be working my way through this article, a colleague of mine forwarded to me a link to Positively Neutral, a web site that provides feedback about mediators and other neutrals. The web site declares that it “provides attorneys with what they care about most: the opinions of other lawyers who have used a specific neutral or expert in their case”.

With Riskin’s and Welsh’s points uppermost in my mind, I had to ask, what about the clients?

(Photo credit: Curtis Fletcher.)

The value of a human life

value of a human lifeOne case haunts me still, from the days when I was practicing law. The clients were parents left bereft by a tragedy that no mother or father should ever have to face.

A driver in a truck, speeding down a quiet suburban street one warm spring morning, struck and critically injured their 12-year-old son, who was riding his bicycle with his friends. The boy was rushed by ambulance first to the local hospital and then transferred to the city hospital better equipped to deal with injuries so severe. For three long months he suffered in great pain, his anguished parents by his hospital bed, until, on a day in late summer, he died.

A moment of careless haste on the part of a driver in a hurry on his route, and a young life senselessly ends.

Liability was never at issue. But to settle the claims against them, the insurance companies involved naturally required proof of our clients’ loss. We produced it all — the police report, statements of eye witnesses, ambulance and hospital records, medical bills, statements from his attending physicians and nurses, affidavits from family members. Even the diary his mother kept of her son’s final days.

There was something indecent about these negotiations, these efforts to reduce to a dollar figure a human life — as if the impact of the death of a 12-year-old boy on his parents could be calculated down to the last decimal point. My own son was 7 at the time, which made this case particularly hard. It hit too close to home, too close to the heart.

The case left me with unsettling questions: How can we possibly place a value on a human life? Why must judgments and settlements value some lives more highly than others? What dollar amount would represent my loss to my family? Or your loss to yours?

Others ask these questions, too. Over the weekend, Kenneth Feinberg, the attorney and ADR professional known for his work in the 9/11 and Virginia Tech cases, shared his thoughts on the National Public Radio program This I Believe when he asked himself, “What Is the Value of a Human Life?” He describes his own personal struggle as he grappled with his legal training and his conscience and gives the conclusion he reached:

In the case of Sept. 11, if there is a next time, and Congress again decides to award public compensation, I hope the law will declare that all life should be treated the same. Courtrooms, judges, lawyers and juries are not the answer when it comes to public compensation. I have resolved my personal conflict and have learned a valuable lesson at the same time. I believe that public compensation should avoid financial distinctions which only fuel the hurt and grief of the survivors. I believe all lives should be treated the same.

Read Feinberg’s essay, and ask yourself the same hard questions.

Part 2 of "The Human Factor" ADR column now available at Complete Lawyer

The Complete LawyerA Sound Mind in a Sound Body” is the theme of the latest issue of The Complete Lawyer, an online magazine covering professional development, quality of life, and career issues for attorneys published by Don Hutcheson. It explores ways to reduce stress; a look at nontraditional careers; and the link between mind and body for better quality of life.

The last issue of The Complete Lawyer introduced “The Human Factor“, a column focusing on ADR from the perspective of four attorneys who mediate – me and three talented colleagues, Stephanie West Allen of Idealawg and Brains on Purpose, Gini Nelson of Engaging Conflicts, and Victoria Pynchon of Settle It Now Negotiation Blog.

In our latest Human Factor column, the four of us describe the different paths that led us from law school to the practice of mediation.

The medium is the message: decoding the courthouse and images of justice

Justice is blindThroughout the world, courthouses tower above the street in busy urban centers or stand with quiet dignity in town squares. Blindfolded Justice waits close by, her sword unsheathed as she lifts her scales.

What do these depictions of Justice say about democracy and law? What messages do the stone or concrete buildings themselves convey about adjudication and human rights? What elements are lost or missing from 21st century representations of justice and the law?

Judith Resnik, Arthur Liman Professor of Law at Yale Law School, has explored these questions in a recent lecture available now in print and visually captivating, “Representing Justice: From Renaissance Iconography to Twenty-First Century Courthouses” (PDF). From the abstract:

This Lecture provides a multi-century, cross-cultural visual narrative of both continuity and change in the use of adjudication by governments seeking to legitimate their authority to impose their law through judges. From the story of the Judgment of Solomon to the Town Halls of Siena and Amsterdam, one can find examples of adjudication, a task of governance that predates democracy. From those walls and the allegories that they represent, one can learn how adjudicatory practices contributed to democratic ideology by generating norms that decisionmakers not be corrupted by payments from one side, that their decisions be predicated on information rather than be arbitrary, and that they hear both sides (audi alterum partem).

Mediators and lawyers both will have much to ponder:

Despite the cutting-edge construction techniques and abstract paintings, many new courthouses, centered on their courtrooms, are both old fashioned and dysfunctional.

Even more troubling, one might read the buildings as gestures seeking to instill a sense of legitimacy to state-based processes by making it seem as if trials were a major modality and thereby rendering the predominance of the alternatives to trial less visible. From a more positive vantage point (if you are, as we are, skeptical of some forms of alternative dispute resolution), one could interpret the ongoing building as evidence of the deep ambivalence that government leaders have about their own promotion of settlement and privatization in lieu of public processes.

This exhaustively researched lecture invites readers to remove the blindfold from their own eyes and judge the courthouse and depictions of Justice anew.

(Hat tip to The Situationist.)

A settlement demand leads to criminal conviction…and questions

Questions result from settlement demand, convictionIn “Settlement Demands Have Their Risks,” Simple Justice reports that a New Hampshire jury found a recently admitted attorney guilty of theft by extortion for threatening to sue a hair salon over gender-based differences in prices of services and demanding payment of $1,000 to avoid a lawsuit. He apparently sent demand letters to approximately 19 salons in the Granite State. The attorney, who had claimed that the difference in pricing caused him stress and mental anguish (despite the fact that men were charged less than women), argued that the conviction violated his First Amendment rights and plans to appeal.

In considering the lawyer’s conviction, Simple Justice asks,

Where do we draw the line? People often feel the “lawyer letter,” that demand that you pay money “or else” or stop doing something “or else,” is extortionate. After all, the express threat is “pay me or pay to go to court and then pay me.” There’s certainly something extortionate there.

The question deepens when it’s no longer a matter of threatening to take someone to court if they don’t settle a claim, but when it reaches the point of becoming a crime. Does it turn on the lawyer’s good faith? Does it turn on whether the claim has a reasonable basis in law?

Bear in mind that there are claims brought to lawyers that ultimately turn out to be frivolous or baseless, but lawyers pursue them because they seem colorable at the time. There’s a huge difference between the claim being shot out of the water for being frivolous and the lawyer being convicted of a crime for pursuing it.

Well said. I agree that these are important questions to raise. However, my own line of inquiry differs, since this case leaves me uneasy for additional reasons. I have to wonder what this young lawyer was thinking. I am struck by his statement, reported in the Concord Monitor, about why he pursued this path:

Asked why he sent letters to salons instead of contacting the [New Hampshire Commission for Human Rights] directly, Hynes said lawyers often settle out of court.

“I believe it’s more appropriate to attempt as amicable a resolution as possible,” he said.

What did this lawyer learn in law school? What lessons did his professors impart of settlement and negotiation, of the resolution of disputes? Who taught him that such action, in a case like this, constitutes effort to effect an “amicable resolution”?

Ironically, had he involved the Commission for Human Rights, he might have had the opportunity to mediate his concerns. How sad that this ill-conceived attempt at settlement leaves no winners in its wake.

Debating the meaning of the A in ADR

Reconsidering the A in ADROur local Whole Foods Market carries a brand of high-end chocolate bars in assorted flavors which boast a variety of exotic ingredients, including — I am not making this up — smoked applewood bacon. In so many ways, that’s just wrong.

Let me set the record straight. I like chocolate. And I love bacon. In fact, a lot (which doomed my brief flirtation with vegetarianism).

Bacon pairs well with lots of food. Chocolate doesn’t happen to be one of them. See, no matter how good something may be, it’s not a perfect match for everything.

Despite the fact that I’m a professional mediator, it’s also one of my concerns about alternative dispute resolution. Like bacon with chocolate, it’s not always the right choice. But some in my field are convinced otherwise.

While attending an ADR conference a few years ago, I struck up a conversation with a fellow mediator. He chastened me when I used the phrase “alternative dispute resolution”. “No,” he corrected me, plainly insulted, “it’s not just an alternative, it’s appropriate dispute resolution — not like litigation, which is never appropriate, as far as I’m concerned. I want people to think appropriate instead of alternative when they hear ‘ADR’.”

Unfortunately the workshop I was leading was about to start, so I left without a chance to tell him what I thought. That was probably a good thing, since I was about to offer an impolitic response. What arrogance, I thought to myself, how can anyone insist on the absolute appropriateness of private resolution for all disputes? It’s like treating every disease with antibiotics regardless of the cause or the symptoms.

That mediator is not alone in thinking this way. Some mediators, I know, think that “alternative” marks ADR as inferior or third-rate — litigation’s unloved stepchild. Google the phrase “appropriate dispute resolution”, and it’ll return over 20,000 hits. Frequent use has begun to legitimize it. This is no cause for rejoicing — not when you stop to read the legitimate criticisms leveled against ADR and overzealous ADR practitioners, or consider the reminders of the value and role of litigation. It becomes harder and harder to insist that the “A” in ADR should mean “appropriate”.

Over the years I’ve thought often about that conversation. I thought of it when I read Victoria Pynchon’s article, “Paternalism, Self-Determination and the Rule of Law“, which recounted an incident at the recent Mediators Without Borders conference:

[S]omeone 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.

It’s time at last to reclaim or insist upon “alternative” as the “A” in “ADR”. Among other things, “alternative” means “choice”, “one of several possibilities”. This notion of choice comports with ADR’s history with its roots in legal reform and other movements which sought to increase, not decrease, the choices available on the road to justice. Pioneer Frank Sander, while envisioning the multi-door courthouse with its many entrances leading disputants to the process fitting best their dispute, never intended that the door to litigation be closed. In delivering his 1976 paper, “The Pound Conference: Perspectives on Justice in the Future”, he reminded his audience of the “need to retain the courts as the ultimate agency capable of effectively protecting the rights of the disadvantaged”.

The lack of choice which ADR’s modern offspring have produced runs contrary to the promise of choice that once distinguished ADR. Let’s put the “alternative” back in ADR and let people choose for themselves what’s appropriate — whether to arbitrate or mediate — or, yes, to litigate.

You be the judge: do retiring justices make the best neutrals?

Judges as neutralsAn article in this week’s Massachusetts Lawyer’s Weekly asks, “Retiring judges have always flocked to ADR. But do they make the best neutrals?” While judges may make great arbitrators — a role which is essentially judging in a private forum — whether they make good mediators is a whole other story.

ADR legend Frank Sander, interviewed for the article, had the following observations:

“Arbitration is private judging, so I think it is very natural that judges would want to become arbitrators, and they generally do a good job,” says Frank E. Sander, a Harvard Law School professor who is considered a pioneer of ADR for his work studying the topic over the past three decades.

But mediation is a very different process, and Sander questions whether judges can step down from the bench and instantly be “competent [as] mediators without further training.”

“True mediation — and I don’t mean settlement activity by judges — is a complex process that requires very different qualities from judging because you’re looking for an accommodative resolution,” he says. “You’re not assessing fault; you’re trying to find a mutually acceptable resolution.”

If a lawyer is looking for a competent mediator, he should not assume that a judge is that person, maintains Sander. In fact, he says, “you should almost assume that a judge wouldn’t be good, though there are clear exceptions to that. … Mediation is a future-oriented process, and court and litigation are past-oriented processes.”

My friend Geoff Sharp, a New Zealand barrister and mediator, weighed in on this issue a year or so ago with “Great on paper, crap at the table“. Geoff linked to an article by mediator Jeff Kichaven, who recounts his experience at the 2006 American Bar Association Section on Dispute Resolution conference with a general counsel who didn’t seem to appreciate the difference between mediators and judges. Kichaven distinguishes the role of the judge from that of the mediator:

Critically, the skills of the professional mediator are completely different than the skills of a judge. The job of the judge is to judge others. The skills of a judge serve a system where juries of strangers follow preset rules and make decisions that are supposed to be consistent and predictable. Judges, therefore, master rules of evidence to restrict conversation and help juries reach these consistent, predictable results. Hearsay, relevance, opinion—these and other limiting rules focus the jury on legally-germane issues and consistent results. Skilled application of these rules is necessary for the professional judge.

Mediators are unshackled from that system. The job of the mediator is not to judge at all. The mediator’s job is to stay curious and leave decision-making to the parties themselves, based on their own standards. Results are individual, spontaneous, and sometimes quite unpredictable. So mediators and judges direct conversations differently. Good mediation technique helps parties gather and exchange whatever information is important to them. That information can address the emotional, financial, and other barriers to settlement. It can go far beyond the “relevant” and “admissible.” So, skill in applying the rules of evidence is not only unnecessary, it can be destructive. A different skill in guiding communication is required.

Kichaven then adds,

Being a good mediator, therefore, has very little to do with having been a good judge. Frankly, it also has very little to do with having been a good lawyer. Just as there are a lot of former judges who are lousy mediators, a lot of former lawyers stink at it too. Additionally, there are excellent mediators who never even went to law school, much less served on the bench. The quality of a mediator depends on the ability to take the litigating lawyers’ own evaluations of cases and test whether, in the eyes of the clients, those evaluations make sense logically, feel right emotionally, and seem doable practically. When those tests are met, cases will settle.

Some former judges have taken the training, gained the experience, and joined the mediation profession. Many others rest on their laurels, on the “weight of the robe” and the “force of the gavel,” and cannot go beyond the raw evaluations that good litigators already know. If all you are looking for is the ability to call back to a boss at the home office and say, “Judge X told us the case is worth Y dollars,” maybe you don’t need a professional mediator. But sophisticated users are left flat by this two-dimensional approach.

As someone who has trained a number of judges over the years to be mediators, I couldn’t agree more with both Sander and Kichaven. Just because you were a judge does not mean you’re going to be a great mediator.

Judges, far more so than others, struggle in mediation trainings to grasp the concepts and put a mediator’s skills into practice. That’s not surprising. With a lifetime of experience judging — and being good at it, too — it’s difficult for them to assume a wholly new and unfamiliar role.

Can a judge be a good mediator? With training, mentoring, talent, and aptitude, the answer is yes. But without training? No way. But this is true of anyone, not just judges. No one — and I mean no one — is automatically qualified to be a mediator by virtue of their profession of origin.

Interview with Lord Harry Woolf, mediation proponent, on International Dispute Negotiation podcast

IDN podcast on judicial reformThe latest edition of the International Dispute Negotiation (IDN) podcast, a series of discussions on hot topics in cross-border commercial conflict resolution, is now available for listening or downloading.

In this episode Michael McIlwrath, Senior Counsel, Litigation for GE Infrastructure – Oil & Gas, and Kathleen Bryan, President of the International Institute for Conflict Prevention & Resolution (CPR), interview Lord Harry Woolf of Barnes, the former Lord Chief Justice of England and Wales Royal Courts of Justice, U.K.

Lord Woolf spearheaded judicial reform in England’s civil justice system, his goal to make justice more accessible to all. His report, Access to Justice (1996), laid the groundwork for the widespread acceptance of mediation and other forms of ADR in England. In the interview, Lord Woolf describes the principles that informed the judicial reform movement and also discusses his views on mediation (“I wanted the litigants to be in control, not the lawyers”).

From the interview:

[We] tried to identify what was it that the litigation system should do. And the first one was to resolve disputes. And the second one was to do so justly.

If you seek intelligent discussion and thoughtful analysis of the issues most relevant to lawyers in international practice and in particular to dispute resolution professionals everywhere, look no further than the International Dispute Resolution podcast series.