Private Sector Innovation: An Interview with Wayne Brazil

Wayne Brazil has been a United States Magistrate Judge in northern California since 1984. Before joining the court, Judge Brazil was a law professor and a civil litigator. As a magistrate judge, he has handled a wide range of assignments in civil and criminal cases. He has hosted some 1500 settlement conferences. He helped design his court’s ADR program and supervises the professional staff that runs it. He has published a number of articles about court sponsorship of ADR programs and two books about judicially hosted settlement processes.

Gini: Good morning, Wayne. Thank you for taking the time to share your thoughts and experiences with us. What attracted you to the field of conflict management in the first place?

Wayne: The deepest roots of my interest in this field are very personal: an intensely felt aversion to and a fear of violence, feelings I have had since I was a boy. During the 1960’s I found the spirit of pacifism compelling — and that the proponents of social/political change by whom I was most moved were Mahatma Gandhi and Martin Luther King, who understood, as demonstrated by their commitment to non-violence, that what is at the center is process, not product, that the means are the ends. I was drawn to the law, initially, because I viewed it as a non-violent tool for social change. When I became a litigator, however, I was deeply disaffected by the adversary system — by its spirit, by the way it wasted people and resources, and by the barriers it seemed to erect to finding just solutions to disputes. As I was moving to the bench, one of the principal assignments given to me by my Chief Judge was to coordinate the work of a task force that was charged with looking for ways to make the process of adjudicating disputes in our federal court less expensive and less vulnerable to the excesses of the adversary system. That assignment led me to the then(early 1980’s) emerging field of ADR. Initially, our interest in ADR centered around its potential for reducing cost and delay. But as we learned more about the field, and as the field evolved, we came to understand that by offering free ADR services, courts (1) could provide process tools that parties could use to pursue a wide range of values (beyond efficiency and rationality) and (2) could deliver service that was really useful to parties in a much wider range of circumstances (than courts could deliver in the role they played in the traditional adversarial system of litigation).

G: If you knew earlier what you know now, would you still have pursued the same career path?

W: I’m not sure — but I have not been able to identify a different set of jobs that I feel certain would have made a better fit with my abilities, values, and personality, or from which I would have been able to make contributions of a comparable character. The work I have been asked to do as a magistrate judge by my court has permitted me to enjoy the rewards (and to experience the frustrations) that attend both efforts to promote structural change and efforts to deliver service to individual litigants. And I have had an opportunity, for a sustained period, to try to represent the values and standards that are most respect-worthy in our system of justice, values and standards rooted in integrity of process and in the respect for other people that is central to that integrity.

G: What is the best advice you have been given, and what advice would you give a budding conflict specialist?

W: Relax. Be more patient. Try to understand more fully the pressures under which others (especially litigators) work, and be more forgiving of their limitations and their behavior. Be more peaceful with the irregularity and complexity of life. And, toward all those ends, be less critical and less demanding of yourself. Neither your existence, nor anyone else’s, by itself, needs to be justified. You need not be “better than” to be. Accept emotional comfort, from within and from others. Appreciate, really and peacefully, connection. Don’t assume that it is your responsibility, as the mediator, to get the dispute resolved or to achieve any particular change in the parties’ situations. When we exaggerate our responsibility, we impose role-distorting pressures on ourselves. As important, we turn fundamental principles of mediation upside down; mediation at its center is about party self-determination and party responsibility. The mediator is not at the center of mediation. Our principal responsibility is to integrity of process — to work as hard as we can to help the parties find and use ways of addressing their situation that they respect and that encourage them to respect one another.

Conflict Resolution Heroes

G: Do you have a “conflict resolution hero,” and if so, who and why?

W: As I mentioned above, two of my heroes are Mahatma Gandhi and Martin Luther King. Another is Jesus Christ — whose messages (unencumbered by the doctrinal ambitions of others) about how people should treat one another, and about what kinds of attributes and acts are central to being a good person, are as profound as any I know. My other “conflict resolution hero” is the late Robert F. Peckham, Chief Judge of my court for 12 years (most in the 1980’s). Judge Peckham taught me that the mission of courts is to serve — to help as many people as possible resolve as many of their problems as possible. He taught me the importance of attacking the barriers to access to our judicial system — as well as of looking with an open mind in all quarters for ways to improve the delivery of service by the system of civil justice. It is because of his leadership, his values, his interest in and openness to experimentation and change, that our court has such a robust, multi-faceted ADR program.

The Biggest Questions

G: What do you think are the big questions to be answered next in the conflict management field?

W: I think I can respond most usefully to this question by focusing on challenges to be faced instead of questions to be answered. I think the core challenge we face is to sustain our commitment to mediation as a process, and to sustain the energy that that commitment has needed and reflected, in the face of disappointment. Our enemy is the banality that can follow from repetition and regularity. The movement is no longer youthful – and the limits on what it can reasonably hope to accomplish, at least over the near term, are appreciably more visible. The risk we face is that we will quit the field because it has failed to meet our expectations, which were, understandably, great and unrealistic. Mediation has not changed human nature. It has not reversed history. And in some of its venues it has been corrupted by powerful outside influences (e.g., the ubiquity of selfish pursuit of adversarial advantage).

Our challenge is not to lose sight of the beauty and importance of mediation’s central messages – and not to forsake the good because the perfect is unattainable. We must believe our own mantra: that it is the process that is the only significant product. And we must understand how much would be lost, how much backward movement there would be, if we were to give up. We need to sustain our faith in an environment that is appreciably less evangelical and appreciably more worldly. We need to embrace, really, the power of trying.

G: What is the major ethical issue facing the conflict management field?

W: A “field” does not face ethical issues. Individual people do. The major ethical issue mediators face is to remain honest – not to succumb to the temptation to cheat (just a little?) in order to move the parties from point A to point B. We do violence to ourselves and to our mission if we cut process corners or dissemble or leave sleeping dogs concealed in order to increase the odds of getting a deal.

Thrills and Spills

G: What has been your biggest thrill in being a conflict specialist?

W: Feeling gratitude and respect from the parties when they see that I have tried to help them.

G: What was your biggest mistake?

W: Losing my temper (and control over my tongue) in private caucus with a party. G: Any regrets?

W: That I have expended so much of myself in regretting.

G: Thank you, Wayne.

                       

Gini Nelson

Gini Nelson is a sole practitioner in Santa Fe, New Mexico. Her practice emphasizes private dispute resolution, including distance dispute resolution, and domestic, bankruptcy and bankruptcy avoidance law. MORE >