I note today that yesterday’s post was . . . . well . . . a little snippy.
Now that I’ve managed to get my hands on a copy of Professor Murray’s article on the privitization of justice (which I’ll post as soon as someone gives me permission to do so) I have a few more observations that are more nuanced than my first reaction.
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.