I have made the case here in the past that attorneys and mediators should be supportive of the work that each does and recognize the value that each profession brings to those who are in conflict. There is overlap after all between these professions: there are attorneys who are mediators, and mediators who conduct their work in court-connected dispute resolution programs. Mediators routinely refer clients to attorneys when clients need legal advice to make informed decisions; and attorneys often refer clients to mediators to narrow issues and expedite resolution. Our relationship is often a symbiotic one. We should be allies wherever possible, not distrustful competitors.
Towards that end, I invite my ADR colleagues to consider for a moment the present crisis that members of the bar and the judiciary face and to take a look at what the American Bar Association has done to raise public awareness and address this challenge.
As regular readers of this blog know, I am no fan of tort reform or of the use of ADR to limit access to the courts. Those who have suffered a wrong or loss should be able to choose among any number of mechanisms for resolving disputes—not just the array of processes that constitute alternative dispute resolution, but also litigation which includes the full panoply of remedies traditionally available under law and equity.
Tort reform of course is not the only threat to an independent and fully accessible judiciary. Judges and attorneys daily come under attack by politicians and pundits alike (these attacks reached their nadir during the legal battle over Terri Schiavo when House Speaker Tom DeLay and other conservatives in Congress and elsewhere threatened judges with retaliation and even implicitly condoned violence against the judiciary). No other profession in the U.S. today is so unjustly or maliciously maligned. (For some classic examples of the kind of overheated rhetoric targeting “judicial tyranny”, check out Phyllis Schlafly’s Eagle Forum. This stuff would be knee-slappingly funny if it weren’t so scary.)
Fortunately the American Bar Association is not about to take this lying down. To counter the attack on the judiciary and members of the legal profession, the ABA offers on its web site the following ammunition:
The ABA Toolkit for Bar Leaders: Supporting America’s Judiciary. This toolkit, designed for members of the bar, bar leaders, and anyone else who cares about the future of the judiciary, provides links to statements, press releases, and sample documents, as well as links to online information and resources.
Medical Malpractice Toolkit. The Medical Malpractice Toolkit includes FAQs, expert studies, and other resources aimed at providing the public and members of the bar with accurate information about medical malpractice litigation and malpractice reform initiatives.
The American Bar Association’s Response to the Criticism of the Courts, the Judiciary, and the Legal Profession offers sample letters, FAQs, and a lengthy list of links to resources and studies which respond to or rebut recent criticism of judges and attorneys.