Ramblings of a Recovering Trial Lawyer: The Mediation Solution
William L. Nagle, Special Master/Mediator
During my practice of nearly 40 years, dispute resolution has changed significantly.
I was the oldest of five children. My father was a dynamic man. A former P-51 fighter pilot, he returned to school on the G.I. bill, and became an insurance defense trial lawyer. At an early age, I desired to emulate him and try cases before juries.
Dad loved to fly, so we learned to fly. I worked as a line boy at a Cessna dealership and as I entered college I had logged many hours in many types of craft and earned a number of tags.
Then disaster. In my junior year of college, my father and my 16-year old brother were killed in the crash of a Stearman. This was a devastating loss of a beloved brother and a dad who was bigger than life.
During law school, I clerked for one of the finest plaintiff aviation law firms in San Francisco. My law review article entitled "FAA Controller Liability In Aviation Accidents - Duty to Warn" was widely published. One of the cited cases involved a piggy-back mid-air collision of two twins on final approach at the foot of the runway directly in front of the flight controller. A flight instructor in the lower plane was a high time, experienced, well-respected, old timer named Al Hamilton. The wrongful death case brought by his widow was in the courts for nearly a decade. But, based on the law, she received nothing. The lawyers spent hundreds of thousands of dollars worth of time and cost in vain.
That case was over 40 years ago. I've often wondered how it would be resolved today.
II. The Seeds of ADR
During the 1960's and early 1970's, cases were resolved by triers of fact. Pleadings were an art form. Attorneys determined credibility and truth through cross examination at trial.
When I first started as an insurance defense trial lawyer, trial judges did not settle cases. In fact, if you even suggested settlement discussions might be appropriate, you would receive a look of disdain. The trial judges tried cases. A suggestion that you might want to settle was a sign of weakness. The system was adversarial.
However, by the late 1970's and early 1980's the drug culture was taking a devastating toll on society and the courts. Criminal cases took precedence and civil departments suffered. The courts began experimenting with Judicial Arbitration, High Low Binding Arbitration, and a Special Master System for Complex Litigation. In addition, the courts began to emphasize early settlement conferences. A good settlement judge could resolve three to five cases a day, resulting in an enormous cost savings of court time and money.
As the courts continued to experiment with different Alternative Dispute Resolution techniques during the 1980's, the concept of mediation began to surface.
A popular joke circulated to define the times.
As a young lawyer was walking through a thick forest he became lost and disoriented. He fell off a cliff. Luckily, he was able to grab onto a small tree that was growing about 20 feet down. As he looked down below his feet, he realized if he let go it would be certain death. Horrified, he shrieked at the top of his voice: "Is there anyone up there?" He waited a few seconds and then shrieked even louder: "Is there anyone up there?"
A booming voice from on high answered him. I am God. I will help you. But you must have faith and let go.
The young man looked back down below his feet to the chasm below him. He thought for a moment and then he yelled back:
"Is there anyone else up there?"
Within a decade, the cultural popularity of mediation compelled legislatures to promulgate mediation rules and regulations. Mediation societies flourished. But the mediation swath created basic and fundamental problems the legislatures and courts are still ironing out after nearly two decades of this new system.
III. Settlement from Mediator's Perspective
Settlement conferences and mediations are inherently and fundamentally different. Courts have the power to coerce and can order settlement conferences. But, mediations are not a court process. The mediation swath of the 1990's created basic and fundamental problems the legislatures and courts are still ironing out after nearly two decades.
Mediation is a voluntary process. A facilitator works with the parties in a confidential non-adversarial environment. The participants attempt to resolve the disputes by and among themselves using terms of art like empowering, actively listening, recognizing, caucusing, and validating.
A. Introduction to the Process
While it is an extremely useful process to resolve disputes, I sometimes think that in its purest form, it is created by sociology majors (the study of the obvious) with minors in psychology (thus the emphasis on the importance of feeling good about the process, the result, and oneself).
I remember my first meeting with mediation types at a State Bar meeting I had been asked to attend in my capacity as a County Bar Association President. I was greeted by people who appeared to me to be grown up hippies from the 60's. They couldn't stop talking about this new process that would replace the court system in resolving disputes. Naturally, I was viewed as the devil incarnate because I was a trial lawyer and I represented an adversarial system with rules of evidence in which triers of fact determined the truth and resolved disputes. A system in which allegations were tested by cross examination to determine veracity and credibility. It was a stark system with harsh results and hurt feelings.
Hallelujah! I was introduced to people who could reeducate me and bring me to the land of milk and honey. A new process in which a facilitator would assist the parties in reaching a mutually agreeable solution. They didn't meet; they caucused. They didn't argue; they empowered. They didn't advocate; they communicated and recognized, actively listened, and transformed. It was a process where everyone would feel good about themselves and the process itself. I pictured a group of naive people sitting on pillows, drinking herbal tea, and singing Kumbaya.
B. Articles and Societies
The titles of mediation articles are instructive and provide an interesting insight and entertaining insight into the mediation realm:
"Hosting Mediations as a Representative of the System of Civil Justice"
"Tailoring a Mediation Process to Fit You"
"Bringing Peace Into the Room: How Personal Qualities of the Mediator Impact the Process of Conflict Resolution"
"The Inevitability of the Eclectic: Liberating ADR from Ideology"
"Unintentional Excellence: An Exploration of Mastery and Incompetence in Bringing Peace Into the Room"
"Hear No Evil, See No Evil, Speak No Evil: The Intolerable Conflict for Attorney-Mediators Between Duty to Maintain Mediation Confidentiality and the Duty to Report Fellow Attorney Misconduct" and, my favorite,
"Defining the Ethical Limitations of Acceptable Deception in Mediation".
Courts and associations like the American Bar Association and the Society of Professionals in Dispute Resolution (SPIDR) publish model standards of conduct for mediation. These publications provide guides for conduct of mediators with the primary purpose of promoting public confidence in mediation as a process of resolving disputes. These rules of conduct emphasize: voluntary participation, self determination, confidentiality, fairness, impartiality, and informed consent. At the root are the concepts of integrity, fairness, trust, candor, and sincerity.
C. Attributes of a Competent Mediator
Initially, the mediation world emphasized facilitation. Mediators distinguished between a facilitative mediator and an evaluative mediator. In the early years of mediation, evaluative mediators were scorned. In its truest form, a facilitator assisted the parties in reaching an amicable joint resolution without offering an opinion. However, after a decade of mediation, studies showed that the majority of disputes were being resolved with evaluative mediators without any blight on the positive nature of the process itself.
Attributes of a mediator should include fundamental fairness and impartiality. He or she should be able to inspire trust and confidence; should have good communication skills; and, should have an ability to identify, focus, and resolve issues. The mediator should have a basic understanding of the law and facts of a dispute; someone with a thick skin who is persistent and optimistic.
One commentator suggested "that the perfect mediator possesses the following traits:
- The patience of a Job,
- The sincerity and bulldog characteristics of the English,
- The wit of the Irish,
- The physical endurance of a marathon runner,
- The broken - field dodging ability of a half back,
- The guile of Machiavelli,
- The personality - probing skills of a good psychiatrist,
- The confidence - retaining characteristics of a mute,
- The hide of a rhinoceros, and
- The wisdom of Solomon.
IV. Full Circle
Mediation is not the be all or end all of dispute resolutions, however it's a great improvement to a black and white system where there is a winner and a loser in trials before a jury or the court. It is a system where people of good will can act in good-faith to confidentially, reasonably, and fairly identify, focus, and resolve issues.
And so I come full circle. How would the widow of Al Hamilton fare today? I suspect there would have been much less time and money spent in prosecuting and defending the claim. I suspect the parties would have gathered some facts and then sought the assistance of a capable mediator. I suspect the end result would have been fair, reasonable, and cost effective. And, I suspect Lady Justice would have been much more satisfied and proud of the final result.