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We Hold These Truths

Source: Los Angeles Daily Journal (ADR Roundtable)
Date: January 20, 2004
As the private judging field grows exponentially, our State of the Law panel debates the impact of ADR on the legal industry - most notably a citizen's right to a trial by jury.

The legal landscape is changing.

Officials up and down the state are struggling to make up for budget shortfalls and keep courtrooms running smoothly. Meanwhile, more and more litigants are forgoing their right to trial by jury and turning to alternative dispute resolution.

As the ADR field continues to expand, its issues and challenges grow increasingly complex. Daily Journal EXTRA decided to gather leaders from both the bar and the dispute resolution field for our inaugural "State of the Law" roundtable. Their task: to take the temperature of the industry.

Those kind enough to join us for the Jan. 8 evening discussion ranged from independent mediators to leaders of some of the state's foremost ADR providers. Respected members of the plaintiffs' and defense bar also gave us the benefit of their experiences.

The participants included Los Angeles Daily Journal editor Katrina Dewey and Daily Journal EXTRA managing editor Katherine Gaidos as moderators, and panelists Richard Chernick from JAMS, Lucie Barron of ADR Services, independent mediators Dana Curtis, Gig Kyriacou and Michael Dickstein, and attorneys Bruce Broillet from Greene, Broillet, Panish & Wheeler and N. Denise Taylor of Bonne, Bridges, Mueller, O'Keefe & Nichols.

The dialogue that follows provides an insight into ADR as it is today, and as it likely will be tomorrow. Our participants discussed whether attorneys these days must turn to ADR more quickly to appease cost-conscious clients, and whether new neutrals in the ever-expanding field receive enough training. They weighed in on the effect of the new Judicial Council disclosure standards for arbitrators, and debated whether the outcome of a mediation is justice in the traditional sense of the word, or something else.

The roundtable was a first in a series this year, which will span a variety of topics. We found it enlightening. We hope you do too. - Katherine Gaidos, managing editor

DEWEY: I think as we were preparing for tonight and doing some research and kicking around different ideas, what we sort of were focused on is the enormous growth in private judging and all of its manifestations from 10, 20 years. I remember interviewing Richard at Gibson Dunn probably 12 or 13 years ago, and he was sort of talking about this private judging thing that he was interested in. And people didn't really know much about it at the time, and I think that the questions that people had were will it destroy the public judicial system and who on earth would want to do this and that there were Richards and others in the world who decided to give it some legitimacy. But we have come a long ways. Now it seems that everybody wants to get into this business, and the questions don't seem to be about should private judging exist. And so I think we wanted to promote some discussion about where you see it going now and are we really past the day where we should be talking about does this undermine the public court system or does it help it in some meaningful ways.

CHERNICK: The real beginning, I think, of the whole ADR movement, modern ADR movement was Frank Sanders' lecture at the Pound conference in 1976 or 1977 on the multidoor courthouse. And his conception was that courts could do their jobs better by having lots of options for parties: judicial arbitration, mediation, early neutral evaluation, any number of different processes; that no one process was appropriate for every case, and every case had some process that an intelligent person could figure out would be good for that, including jury trials and court trials and summary jury trials and everything else in between. And so the whole movement started as an adjunct to the court system, and much of the impetus and the way most people have gotten into the business has been by participating as trainers and volunteers doing mediations and doing judicial arbitrations. But the business really has outstretched that whole movement, and it is now really not about the courts at all. Mostly what AAA and ADR Services and JAMS do is to provide a service for businesses primarily to resolve their disputes in a way that they believe courts can't or aren't able to do and where they are able to craft for themselves a process that is appropriate on a case-by-case basis for the optimum result. And that's really where California has taken the lead over the rest of the country, because this really is not evident yet outside of California to the extent that it is in California. I think that there are more cases in California that are resolved by arbitration award, commercial cases, than are resolved by court judgments, verdicts after trial.

BARRON: But not mediations.

CHERNICK: I'm not talking about mediations. I'm talking about the actual resolution process, the arbitration process.

BARRON: Right.

CHERNICK: There are literally hundreds of former judges and lawyers who are spending their entire professional life arbitrating commercial disputes, and they are outstripping in a lot of ways what is happening in the court system.

DICKSTEIN: To answer your question about fear that this would supplant the court system, I think what people tend to ignore is that something like 95 percent of cases never go to trial. And it may have gone up slightly, but they never did. And so what this really is doing, this whole movement is making more efficient the process of getting a resolution before you go to court. There are still cases that are going through the trial creating precedence and ending up on the books.

BROILLET: But it's important to distinguish between mediation, which is a voluntary thing that helps to resolve a case, and arbitration, where particularly individual consumers or the less powerful can be compelled by some kind of agreement they sign, not realizing what they are signing, to go through an arbitration process and lose the right to trial by jury. With regard to mediation, historically - and Richard, you will remember this from the '70s -- judges who had a case set for trial always had something we called a MSC.

CHERNICK: 21 days before trial.

BROILLET: Right. It was a mandatory settlement conference.

CHERNICK: After all the money had been spent, after all of the emotions had been invested.

BROILLET: But worse than that, the judge who had a full calendar, a docket to deal with, a trial that might be going on, takes a case and tries to settle it in half an hour or 45 minutes. That's the way it used to be. It was very inefficient. What mediation does is it allows everybody to get prepared and to have a significant period of time, maybe over the course of multiple days, to try to get a case settled. That aspect of all of this is very good for the court system because it's helping to get cases out of the system, and it's benefiting both sides by allowing them a full-blown opportunity to settle the case. The danger comes in on the arbitration side if people are unwittingly being denied their right to trial by a jury.

BARRON: What I have seen in the nine years that ADR Services has been around, is that there has been a terrific growth in the mediation side. And I don't know about arbitrations, but about 85 percent of the cases that come to our office are cases for mediation. And that's a big difference. The other big difference is that we used to get cases that were right on the courthouse steps or after the trial and a verdict was issued, and then they would come back and try to negotiate some kind of settlement, if they could. That tends to be rare, and in many situations almost nonexistent. We still get those cases ... but generally they come to us in a much, much earlier stage, first of all. And secondly, they tend to come much, much more from corporate counsel. We will get cases directly from corporate counsel, which never used to happen. Big business, I think, drives the resolution process; they don't like the risk or the exposure. And at some point, whoever you end up suing, some business entity at the end is going to have the money, whether it's an insurance carrier or otherwise. They're the ones that are going to foot the bill, and they are the ones who are really pushing for mediation. They look for dispute resolution much, much earlier, and they're much more sophisticated, much more comprehensive, much more prepared. And it's not something that the court orders out. It's done totally voluntarily at a much earlier stage.

DICKSTEIN: Right. And it's even going farther than that. I think they're going to start supplanting our roles because you see things like Kodak, which has internal panels now that make decisions that have nothing to do with outside mediators or arbitrators where they are getting rid of a lot of disputes before they really become disputes involving lawyers.

BARRON: They set up programs and things like that internally.

CHERNICK: That is a great thing - that mediators have taught lawyers how to settle their own cases. And easy cases now get settled without anybody ever calling a mediator. So mediators now get much tougher cases. And cases that I used to get in the mid '90s that you could settle in an hour or two hours because everyone was there ready to settle, those cases you don't see anymore. They do it on their own because they know how to do it and they're not reticent to call the other side and say, "Hey, we ought to try to resolve this." But the cases you get now are tough, tough cases, and they don't settle in a day. They take multiple days.

KYRIACOU: The realities of litigation and what is driving the popularity of mediation is the fact, like everyone said, cases settle at some point in time in the process. And they used to settle very close to trial or on the courthouse steps, and the costs that are involved in getting there and the lack of control in the process, all of those things are what drive the popularity of mediation where it's driving it to an earlier and earlier stage. We're seeing a lot of mediations prefiling now. It's very common in the employment field.

TAYLOR: Surprisingly, it's not that uncommon in the malpractice cases either. I have had several conferences recently where the client has called me and said, "Before litigation, let's go to mediation," and I do a flurry of activity to do some discovery to find out what the case is about, get an expert review and then go to mediation. And it's exactly what Lucie was saying. It is the cost of litigating these cases and for my clients, the doctors, the exposure. A lot of them have policy limits that are rather modest for what the damages can be in some of these cases; and so the interest is settling and, for the carrier, settling before too much expense has been put into the case.

BARRON: I think there is another thing that drives the difference these days. I think that corporations will not keep their lawyers forever like they used to. If [a law firm] had Bank of America, for example, as a client, you had them for life and you could litigate whatever you wanted out of that, and they would stay with you. That loyalty has gone. So those lawyers that would litigate a case to a trial and then decide they were going to settle, that doesn't happen anymore. You do that once or twice; you'll get fired. They go find another set of lawyers. Another thing that I have noticed is that a lot of [companies] have now set up their legal departments as independent profit centers ... which means that they have to really manage their legal exposure and their legal costs.

KYRIACOU: I have had a number of corporate counsel tell me that unless their attorneys are willing to mediate and are sophisticated in the process, they are looking for other attorneys.

BARRON: That's right.

Mediation is institutionalized now in the system.

DEWEY: In a world where so much of this is driven by companies looking to save money or to even take these cases to mediation before they have been filed, can you ever have an outcome that is as good for the plaintiff or the consumer?

BROILLET: I think that's the threat.

DEWEY: Well, what do you see? Are plaintiffs willing to accept less money because they are getting it over with more quickly, or do they not feel that they have other choices?

BROILLET: I think that the plaintiff, in consultation with the plaintiff's lawyer, will decide whether, on balance, it's better to settle at this point for a lesser sum of money than to spend what is involved in the case.

CHERNICK: And to take the risk.

TAYLOR: And to take the risk, exactly.

BROILLET: But when it comes to risk, once again, the thing that drives the settlements in mediation is the fact that sooner or later everybody is going to have to face 12 people, unless they waive their right to trial by jury. And that can really drive the settlement in the case in terms of the risk, and that goes on both sides.

DICKSTEIN: And it depends on the dynamics of a particular case ... There is really no simple way of saying that mediation benefits or hurts plaintiffs or defendants. It really depends on the context of a particular situation.

KYRIACOU: There are many more options earlier on, whether it's for closing negative publicity, whether it's allowing someone to move on with their lives and re-enter the employment field. In the entertainment field, often publicity is always an issue. And once the case is filed, it has a whole different connotation than prefiling, where once depositions are taken, it has a different connotation. Your options are greater the earlier you do it. There is a downside of not having as much information, but a plaintiff may be able to net more dollars with the defense paying less earlier on just because of some of the costs that are involved in litigation.

BROILLET: And there is also the time value of money. But it's a different consideration for the consumer. In the business cases that I handle - and we have a couple of sophisticated entities on both sides - that's one thing. But in the cases where I may be representing a consumer in, say, product liability ... sometimes the consumer will feel like the mediator is always working with the same company - Ford Motor, for example - over and over again. So is the consumer going to get a fair shot? And that's why ultimately in those situations, the consumer as the plaintiff has to have a lot of confidence in their lawyer, has to have a strong lawyer, and has to have [the option] to resort to a jury trial in the end -

TAYLOR: Unless the consumer has Bruce Broillet as their lawyer, then they are going to feel like they are well-represented no matter how many thousands of times Ford has [used a mediator]

DICKSTEIN: But that's exactly right. See, what I am concerned about is not the person you're representing. The person I'm concerned about is the person who is not represented at all. You are going to make sure that your client is properly treated and thinks about whether this is a reasonable resolution. Otherwise, that's not necessarily the case.

CHERNICK: This is an extraordinarily sophisticated market in California in particular. And plaintiffs' lawyers as a group are very astute at knowing who provides skillful and good value to them in conducting mediations and facilitating settlements, and defense lawyers have the same network of information that they share among their side. So anybody who gets a reputation for leaning toward one side or the other is going to be out of business very quickly. The virtue of the California market is that there is so much of this that goes on that at the higher ends of both the mediation and the arbitration business the best people survive, and the rest sort of fall by the wayside. Because in all of those processes, both sides have to agree to select the person to conduct the proceeding.

DICKSTEIN: And that, to me, is a totally key point. Because the idea that corporations are repeat users ignores that plaintiffs' lawyers are repeat users.

BARRON: And you must know that what Richard said is absolutely true. There were some neutrals that were so busy in the beginning and then became a little bit less busy and decided that they were going to favor that entity, corporate America, that was going to provide them with most of the cases and six months later or three months later - fast. It's so fast now - that by a year, they're gone because it doesn't matter how often defense counsel propose them, the plaintiffs' side will say no.

BROILLET: That's a very good point, and I can tell you that in my own experience, sometimes I am surprised by the mediators that are proposed by the defense bar in cases that I have handled because they are people that traditionally have been thought of as plaintiffs' mediators. So obviously the mediators have been sensitive to the fact that they have to pretty much cut it down the middle or else they're not going to have credibility to both sides.

KYRIACOU: If you're not impartial to the parties as a mediator, you're going to lose business down the line. That doesn't mean that you're impartial about the facts. The facts will drive the case one way or the other, and the parties want you to participate and help them obtain an evaluation from a third party as to where the case should go. That's part of the reasons that they come to mediators as well. But if you're not impartial ... your name gets out there.

BARRON: And there are a lot of people out there today, really good neutrals in the marketplace. There are many, many people to choose from, more today than there were a year ago, many more a year ago than there were three or four years ago.

DEWEY: It sounds amazing because the competition evolved to the point where there are so many good people in the market that if you're not going to really be down the middle, you're going to get shaken out of the market.

DICKSTEIN: I actually have a different view on that. I don't think there is a huge glut of really good people. And it may just be my perception, but I think it's hard to get a really good person. And even people that are very capable at the law are not necessarily capable mediators or arbitrators. But you're right. If you're not neutral, you won't last in this business for a minute.

CHERNICK: I think that the more good people there are in the business, the better it is for the business and for everybody who is in it. Because as people gain confidence in the reliability of the ADR processes of arbitration and mediation, they're going to be motivated to use it more extensively. It really is dramatic how the quality of the California dispute resolution market has affected the size of the dispute resolution market.

TAYLOR: The interesting thing to me is that many of the same people are mediators and arbitrators. And while in mediation finding someone who is quote, unquote, down the middle is an important thing - and I think what we're really saying is someone who is fair and who doesn't favor one side or the other - that's very important. But in arbitration, what the defense fears is that the arbitrator will do just that, and that's cut it down the middle where there should be an arbitration award for the defense. And I think there is a fear of arbitration from the plaintiffs' side because they'll get their award, but it will be much smaller than they could have gotten from a jury because the arbitrator will try to split the baby.

CHERNICK: I think it's an unjustified, unwarranted fear because arbitrators who have that reputation simply don't get work. If their reputation is to figure out a mediated result, which is satisfactory to either side, both sides are going to hate it. And they don't have to pick that person because there are so many good people around who are available, who are not going to do that.

GAIDOS: In terms of how attorneys choose an arbitrator, how do the new Judicial Council ethics standards for disclosure affect that?

CHERNICK: They have made the process much more transparent. It used to be that many people in the business weren't careful about making disclosures because they didn't think it was important, or they thought it was too much trouble to keep track of the information. But now, obviously, you have to, and there is a big risk that if you don't and if it jeopardizes the confirmation of an award, that's the kind of thing that sort of gives the neutral a black eye and the arbitration institution that is in charge of administering the process as well. So it has helped, I think, to acquaint neutrals with their obligations. It's information that the parties are entitled to have. They should absolutely know if the arbitrator has previously mediated or arbitrated cases with the law firm or with the lawyer or with the party. And if they think it's important, they choose not to take that person. It is absolutely a great benefit, in spite of everybody's fears that it was going to be a nightmare.

BROILLET: The concerns I expressed earlier that the consumer or the little guy would have some concern about the number of cases that a particular arbitrator or mediator has with a particular company over the course of time, it's not so much with regard to mediation. It's with regard to arbitration because of that loss of the right to a trial by jury. Because in mediation, you select a mediator together, and if somebody doesn't want to settle, they don't settle. And there has been tremendous development positively in the field of mediation that I have seen. But, for example, if it's arbitration - let me just throw out a hypothetical question here - should the parties be allowed to voir dire the arbitrator on bias?

CHERNICK: Absolutely. It happens all the time.

BROILLET: It does happen?

TAYLOR: Not in our cases.

CHERNICK: It happens in a joint conversation, telephonic or in person, where the arbitrator is interviewed by both sides. I get interviewed all the time in larger cases where they want to know what kind of cases have I had in the past, who have I worked with, what kinds of experiences have I had ... You can't ask questions about, what do you think about applying 16600 in this particular situation? That would certainly be off limits. But you can get a sense that way, and it frequently happens to arbitrators in high-end cases.

DICKSTEIN: But I think that's the key, is that you said high-end cases.

TAYLOR: That's right.

DICKSTEIN: And you're worried about the guy who doesn't have the resources to go do that.

BARRON: Because we get those also, and you're right. In business cases it happens all the time, but not in the cases that you're talking about.

TAYLOR: If I have an arbitration and I have a medical malpractice case - let's say it a breast cancer case, failure to diagnose breast cancer - it would be very helpful for me to voir dire the judge to see whether his wife or daughter or mother died of breast cancer. I will never know that. I will never know if that judge has a personal bias because of some personal experience he or she has had in their life unless they volunteer it, and I have never had the experience where they volunteer it. And so I think that those are the benefits that we have with jury trials that we do not have with arbitration, and I think sometimes you get results that you wonder why, and you never know.

BARRON: But nobody ever asks. The reason you have those interviews and the reason we get those calls where they are thinking of using a particular arbitrator [is that] both sides want to have a conversation with a potential arbitrator. But in the med-mal cases, nobody ever asks. And I'm sure in those cases, no one has ever thought of it. You could.

DICKSTEIN: It also matters in mediation. I am shocked at how few people ever ask me what my style is, what my approach would be, how I would handle a case. Never. Almost never, and you would expect them to.

BARRON: No. I wouldn't expect them to. The lawyers are so sophisticated and they're so knowledgeable and they have gone to so many mediations that they don't need that kind of discussion. They're not interested in it, they don't need it, and you come by reputation.

TAYLOR: You come by reputation is the thing. Because somebody is asked, "What is this mediator like? What is his process, and how does he work?" and then we choose you or we don't. Or we say, "Hey, I have never heard of this guy" or "I've heard of him. Never used him. Let's try him."

DICKSTEIN: But if you were doing this in a case where you were the party, are you telling me that you wouldn't say call the mediator and just talk to them, figure out what they are like, what their style is?

TAYLOR: No. On a mediation, I would expect my attorney to have done his research or her research, and not necessarily by talking to the mediator and asking questions, but maybe by asking other people who had experience with the mediator. I usually don't [use] a mediator on a big case unless it's a mediator I've worked with before and I know the process and I know what is going to happen there, because I have to tell my clients what to expect and I have to know what to expect.

KYRIACOU: I don't think I have gotten a new attorney face that came in that wasn't as a result of them sending an e-mail around the office to see if someone else in the firm knew me ... They talk about the kind of case, the kind of clients that exist, whether Gig or Dana would be right for that particular case. ... I do think that they're sophisticated, but I agree with Michael. I think that they should ask. If they don't know, they have to go out there and ask around.

CURTIS: My question is why could there not be [a voir dire]? Is it a question that as a matter of practice, the principal attorneys really haven't considered that as a possibility?

TAYLOR: That may be part of it. I know in the Kaiser system we have an office of an independent administrator that gives us a list of our potential arbitrators with the disclosures, with a biography, with some ratings from lawyers who have used them before, and then we do what is called a strike and rank. And then whoever you're left with, you're left with. That is your arbitrator.

CURTIS: The process is restricted.

TAYLOR: There is nothing in the process that allows for a voir dire process for the types of questions that I was talking about. Now, you find out about the arbitrator through the disclosures, but not everything you might want to know.

CHERNICK: Let me ask you this. In the Kaiser situation, you get a strike list. You end up with one person.

TAYLOR: That's right.

CHERNICK: When that person is selected, that person still has to make a disclosure under the Judicial Council rules because I'm sure the independent administrator is not making all 10 of those people go through that process first. So there is a disclosure process after you choose through the strike process. And at that point, if information comes back that you believe warrants asking that person not to serve, you have the absolute right under the Judicial Council rules to simply disqualify that person. During that period, there would be nothing wrong with both sides asking for an opportunity to spend 15 minutes on the phone with that person. They wouldn't charge for it. It doesn't take very much time. You can ask the questions that you want to ask pretty quickly. And if you're uncomfortable in any way, you have the right at that point, the absolute right under the statute to simply say, "I don't want this person. I would rather have somebody else."

TAYLOR: See, I am learning a lot here.

DICKSTEIN: Most arbitrators would want to do that because I assume they're like me in that they wouldn't want to be an arbitrator in a case in which both parties - or as many parties as there are - were not totally comfortable with them.

GAIDOS: We've already talked about how the field is growing and all of these new people are coming into it from the bar and from the bench. And although it sounds like most of the time the decision is made based on who you know and who your colleagues recommend, you can't always know who you get. So are new arbitrators and mediators getting enough training in the field, or are they jumping in cold?

BARRON: They are getting more and more training than they ever have. They used to jump out in the cold. They used to think, particularly the judges, "I have heard everything. I know everything there is to know, and I am just going to be absolutely outstanding and everybody knows me."

CHERNICK: That's the one you don't want to hire, the one who thinks he knows it.
BARRON: But that is not true anymore. Everyone that I know of will go through some kind of training at Pepperdine or -

CHERNICK: Mediation training.

BARRON: That is actually a very good point. They will go to mediation training. They will go through training to become a dispute-resolving professional in the settlement arena. They do not go for training for arbitrations.

CHERNICK: The dispute resolution section of the ABA is doing for the very first time an Arbitration Training Institute in San Francisco in May, a four-day intensive training for the very reason that there is not available in the field, unless you're on the panel at AAA or on the panel of JAMS, competent arbitration training for commercial arbitrators.

BARRON: That is true. There is none. He is absolutely right.

CHERNICK: There is just no place to go for that. Pepperdine has some academic courses, and they have some of these summer courses, but they're really not intended to teach you how to be an arbitrator. And you could have great trial skills as a lawyer or as a judge, but until you understand the real process of arbitration, you really can't be effective as an arbitrator.

DICKSTEIN: Those are all good and admirable steps. But as someone who trains, at least in mediation, judges and lawyers and has trained a lot of judges, I actually would argue that most people do not get enough training.

CURTIS: In Austria, for example, they require 200 hours of training before you can ever mediate a case, ever. And so when we say a 40-hour training, that's really not very much ... What really needs to happen to make good mediators is a mentoring process and a real attention to not just the skills that are required or the tools that a mediator uses but to other dimensions as well, one being the qualities, the internal sort of qualities that it takes to be a mediator ... especially now that we're really advancing as a profession mediators could have far more elegant training than they do and comprehensive training.

DICKSTEIN: And there is an ongoing component with that also because most mediators get their training when they start and when they're done. I co-chair the Association for Conflict Resolution where we have come up with an advanced practitioner designation. And to be an advanced practitioner, you have to have continuing training or else you cannot maintain that designation. And I think that is really important.

TAYLOR: But don't you think that it's not so much that mediators are not getting enough training but there are a lot of people going into mediation that really aren't cut out to be mediators? They can get all of the training in the world they want, but if they're used to wearing a black robe and telling people what to do, they just may never have the personality or the disposition or whatever it takes to be a facilitator. I come from a trial firm, and in our firm we used to always say you can't really train someone to be a trial lawyer. You have either got it or you don't, and I think with mediators it may be the same.

KYRIACOU: And a lot of it is what you are as a person that makes you a good mediator or not. You cannot fake being sincere for very long. And in mediation, you are with the parties typically for a long period of time. So however much more training you get - and I agree that there should be continuing education - the skills are innate, and the marketplace is pretty cruel in determining who has those innate skills and who doesn't.

BARRON: There are some people who are born mediators and some people that just cannot do it. You have to have a sense of understanding the people. You have got to be able to bond with people. You have to understand the personal dynamics. You have to be able to read what they want to get out of mediation or to get out of the case, what is going to drive them to settlement. And that level of intuitiveness cannot be taught. It's like teaching someone instinct. How do you teach something like that?

DICKSTEIN: Just as the teacher, though, the question is can that person improve themselves?

BARRON: I am sure you can improve yourself, and you can teach skills. You have to have skills to be able to get better. How do you deal with an impasse? There are different ways of dealing with certain things. And there are many different mediation techniques, and some work in some situations, and some work better in another. All of that is true. But there are some mediators who just have that in them, and I think you're absolutely right. It's like the trial lawyer: You either have it or you don't.

TAYLOR: You do, [but] you can get better. A trial lawyer can be trained to be more accomplished, mainly through experience and learning from your mistakes.

BARRON: Right. And I think one of the things that makes mediators better and better is the practice. I don't know what you meant with the mentoring and what you were thinking when you said that, but it's that practical experience that makes you better.

CURTIS: That is generally true. But I think it requires, in addition to the innate qualities that are present in a person ... another element of curiosity about yourself and a willingness to look at what you're doing. I know a lot of mediators who are very competent but seldom reflect. And because they have such charisma and they're just such great people, they keep doing a good job. ... But to have the patience and to have the curiosity and to develop the ability to hang with the tension long enough to really discover what it is that drives people, whether it's individual plaintiffs, what their needs really are with respect to the settlement.

BROILLET: So what you're saying is that - to put it back in the context of a trial lawyer that Denise and I are familiar with - is that you start with the basic qualities that are the qualities that it takes to be a mediator - the same thing is true of a trial lawyer - and then you engraft upon that some training, too. And the combination of those things produce the most effective result. And ultimately, this system is not about the lawyers or the mediators or the judges; the system is about the people that we all represent. And so the better that we can do the job for the people, the better it is.

CURTIS: And I think it's about maturing as well. It's maturing in a profession in a way that it's different from becoming good and complacent. It's maturing and growing and being willing to take risks and to look deeper to develop the process and the profession, not just my own book of business.

DEWEY: Are the qualities that make a good arbitrator different from a mediator?

KYRIACOU: I think so.




CHERNICK: It's a different skill. Arbitrators are process people as mediators are in the sense that they're partners with the parties in sort of orchestrating a process that suits their case and managing that process. But ultimately they have to be able to listen to and comprehend complex factual information, oral and written, and to process that and apply it to whatever legal principles there are and to ultimately come to a resolution that is the right or the correct resolution, the correct answer in that particular case. And it's a very different kind of process ultimately.

BARRON: There are some great advocators who never would be able to settle a case ever, but as an arbitrator they're actually outstanding.

DICKSTEIN: You can be good at both, though. There are overlapping skills. As a mediator, there are basically two things, at least in my mind, you're doing. And the main focus is helping the parties reach a deal, an agreement that works for them. It's sort of deal making. The second part of what you're doing is talking to them about what happens if we don't make this deal. What does the world look like if you don't make that deal, and is it better or worse than what you have in front of you? That's where you get into a discussion of what might or might not happen in court. And so the skills you might use to analyze that may be similar; but just as Richard said, the arbitrator takes those skills and makes a decision, and the mediator does not. The mediator just tries to help the parties understand what their decision might look like from the arbitrator or judge.

BROILLET: And there is an analog to the way things used to be in the days of the old mandatory settlement conferences. Some judges were fabulous trial judges, but they couldn't settle a case if their life depended on it. They didn't have those skills in those settlement conferences. ... And there are those today as well that are still on the bench that get cases sent to them for settlement. And then ultimately when they retire they're going to end up at one of your fine organizations and continue doing a great job.

TAYLOR: There used to be a lot more on the bench that could settle cases, but now they're all retiring early and going to work for Lucie Barron or JAMS.

DEWEY: I was wondering when Bruce was talking about ultimately for them it's about the clients and the end result, sort of the analog for those of you who are private judges - if you're a public judge what you're delivering is justice and your clients, I guess, are the people. What are you trying to deliver?

TAYLOR: I hope justice.

CHERNICK: From the arbitration side, you try to get it right in terms of resolving a dispute correctly and providing the parties a process that is efficient and appropriate for the particular case so that the value that you are giving them is both a reliable process and an outcome that is explainable by reference to the facts and the law. And those are the things that I think distinguish arbitrators who are successful at the higher end of the market.

BARRON: What do you mean by "justice"? Isn't justice getting compensated or getting a wrong righted, getting compensated for something that happened and that somebody should be held accountable?


BARRON: So if you do that and settle it at mediation, is that any less justice? Or at arbitration, is that any less justice than it would be if you actually went to trial and got a verdict?

DEWEY: Well, I don't think so, but it's interesting. When you talk to judges who are on the bench, they say, "My job is to render justice." And when you break down what they're doing and applying the law to the facts, it's very similar to what each of you do and what we have talked about. But it's interesting what drives you to do that.

DICKSTEIN: Except that you really are talking about two different things with arbitration and mediation. As far as arbitration, I think Richard has done a reasonable job of explaining it. You're sitting in an arbitration following a certain set of rules, and those rules often are very similar to the justice system. To the extent that the parties choose to make them identical to the justice system, you are sitting to provide justice to the parties. To the extent that they all choose amongst themselves to alter those rules, you are providing whatever it is that they have contracted for you to provide under their system. ... But in mediation, you're talking about a totally different world. The argument in mediation is that it's not about providing justice; it's providing help to the parties to reach a resolution because you are not making a decision.

TAYLOR: A lot of mediators will tell you that if either side goes away too happy, then it wasn't a good settlement because usually people go away not getting as much as they wanted or paying more than they wanted. And so mediation is much more of a compromise, and arbitration should be a decision based on the facts and the law.

KYRIACOU: I don't like the phrase "both sides go away unhappy." I prefer both sides go away satisfied or at least relieved. And I think the goal of mediation is to reach a mutual agreement that is better than the alternative of going to trial, given the risks involved, and usually better on a lot of different levels, better emotionally, financially, and based on that person's life at that particular time and, frankly, based on the skill of counsel. Prepared, quality litigators do better in mediation, just as they would do better in trial.

CURTIS: That was really a very interesting question because I was thinking that really doesn't apply in mediation, justice. And yet there are cases in which justice is really absolutely what a party is looking for, and justice as it applies to the resolution. And so I think the difference is that the parties really determine the standard, and they don't have to be the same on both sides. But the question is what will satisfy as many of the person's needs and interests as possible. And this leaving equally unhappy, if that's the best we can do, that's the best we can do, and sometimes it is the best that we can do.

TAYLOR: I'm in a room with a bunch of mediators so you don't like that phrase, but it is a phrase that is used a lot.

DICKSTEIN: I think the answer is you can always compromise in the middle, but there is also the potential in mediation to make a better deal, a deal that is more satisfying to each of the parties than what they would otherwise get. And that's what is lost when you say everybody leaves unhappy because if they're actually unhappy, then they should just walk out the door and not make an agreement if the world is actually better outside than in that room.

TAYLOR: Well, let's face it. People who are in litigation are often going to be unhappy and are usually going to be unhappy no matter what happens, whether they go to trial or whether they mediate. And that's why you mediate a lot of cases, because as unhappy as you may be with the outcome of the mediation, you are going to be more unhappy if you spend the time, money and emotions going through the trial process and then maybe losing your case altogether.

CURTIS: I think there is a mediator tool here that is really important and that is really helping people adjust their expectations. It's one thing to say we're going to leave equally unhappy and that's our goal, but you could reach exactly the same result through a process that is respectful of the human beings who are involved and really examine what the opportunities are where people really do leave feeling like, "yeah, this maybe isn't everything I wanted, but this satisfies almost everything."

KYRIACOU: It's an evolution. If you took the numbers that the case settled for at the end of the day and put them at the beginning of the day, both sides would have been horribly unhappy. But going through the process, at the end of the day they're both satisfied that they made the right decision. Even if they're not totally happy with what they got or their expectations weren't met, expectations were adjusted by both sides throughout the day based on information that would have come out through the course of litigation and the quality of arguments made on each side. ... One of the things that I try to do at the end of the day is I give four or five good reasons why they settled the case so that if they have to go home and talk to a spouse or a parent, they can explain it so they feel good about why they did what they did. And that helps in a lot of cases to get people over the hump of settlement.

CURTIS: I had a person come to my class a few weeks ago at Stanford, and he made the statement that fear and ambiguity are really the mother's milk of mediation. And I think that you can accomplish through exploiting fear and ambiguity a settlement in which people leave equally unhappy, but I really question whether that is the highest level at which we can be operating.

DICKSTEIN: And I think that that is exactly the problem with the focus that a lot of us have right now, which is what I said before that mediation has two parts: Deal making and talking about what is going to happen. What you're saying, Dana, is everybody is so fixated on what is going to happen and why it's not going to be so good and not spending nearly enough time on saying, "OK. How do we make a deal that makes people happy?"

CURTIS: Well, in some respects. I think it's really important to figure out what will likely happen. I'm just saying that it can be done in a way that is designed to inform instead of to manipulate or to create fear and then exploit that so that you can help people move. I think that we can do better than that.

BROILLET: Well, remember the term dispute resolution. At the end of the day if all that has happened is that the two angry parties or angry companies or whoever are still furious with each other and have agreed to take a sum of money, then what you've accomplished at the end of the day is to put a sum of money on it that takes it out of the courthouse but the dispute is still there, it hasn't really advanced the cause a long way.

TAYLOR: With a lot of cases, whether they're employment disputes or our medical malpractice cases that had a doctor-patient relationship that went awry - we're dealing a lot of times with undercurrents of personal feelings and pain.

CURTIS: On both sides, really.

DICKSTEIN: You can have a young lawyer sitting there who has a relationship problem with his client because he or she has to impress the client, and that matters in a mediation. So from a mediator perspective, you have to think about all of those relationships, the underlying ones and the other ones.

TAYLOR: That's absolutely true. And the clients, the insurance carriers, if there is one ... there are a lot of relationships that the mediator has to take into account.

GAIDOS: We're into a new year now, so why not, just to wrap up, go around and throw out some predictions of what you see coming ahead for 2004 in the ADR field.

DEWEY: Or what you would like to see.

BARRON: I really do believe the industry is going to grow ... that it's going to become much, much more institutionalized and is going to continue to grow at an exponential level.

DICKSTEIN: I think it's going to grow, and I think it's going to broaden, which I think is an interesting development. Now, we have just spent all of this time talking about arbitration and mediation, but you're really starting to see things happening that involve different levels of internal dispute resolution mechanisms. And these panels, as I said at Kodak, I think it's totally fascinating that they have some employees and some supervisors on a panel that makes a decision that is binding on the company but not the employee. And it is things like that that are novel and different that I think are going to develop more and more and are very interesting.

TAYLOR: I think that as the industry grows, there will be more and more sophisticated mediators who are facilitators and trained in mediation as opposed to the old MSC judge who retires and becomes a mediator. I think that the training that is out there makes the mediators more sophisticated. And the ones that are busy are going to be better at it. They're going to have to be because of the competition.

CURTIS: I predict we're going to have more court challenges in various circumstances as the profession evolves and grows. And I think it's so exciting to be able to witness this and participate in the discussions around it because so much of the law has been developing for many years that right now we're getting to see it at each step. And I think that as that occurs, it gives the profession an opportunity to really examine more carefully how we practice and the impact that we have.

KYRIACOU: I hope for some of the things that Dana talked about, in the sense that as the litigators become more sophisticated that the process allows more creativity so we can achieve better resolutions where the parties are more satisfied. There is nothing comfortable about a mediator having that case where everyone just settled on a number because it's better than the alternative, but they don't like it and they walk away unhappy. ... I find that there are many occasions where the relationship between counsel builds as a result of the settlement. You see that where at the end of a tough case and a difficult situation and plaintiff's counsel and defense counsel sort of forge a new relationship that may or may not exist going through trial but has many more opportunities through the mediation process since more cases are resolved through mediation than trial.

CHERNICK: 2004 is going to be a very bad year for the courts, the economics. The court budget situation, which was bad last year, is going to deteriorate more in 2004. It's not fat that they're cutting out; it's muscle. That is going to affect the balance that had traditionally existed in California between the private and the public system. And it is going to tilt, for a while at least, people's interest in finding private resolution because they simply can't get what they would regard as reasonable public resolution because of those constraints. It's going to be a little boost for ADR. I'm not sure in the long run it's the right kind of boost because I think the important balance that should exist between the private and the public system is going to be out of whack for a while, but that eventually will get back once the economy restores.

BROILLET: And just one follow-up to that. Going back to the original notion that the thing that makes the cases settle is when the ultimate dispute reaches the jury, we have to make sure that that survives our economic times, and we hold that so that the ability to get things taken care of via justice is [sustained].

CHERNICK: We have to give the mediators appropriate leverage.

BROILLET: That's right.

KYRIACOU: There is a great assault on the jury trials these days with the advent and the increase in the number of arbitration clauses that are popping up in the employment field, to name one, but probably also across the board.

BROILLET: We should always remember our roots. I think that one of the things that we articulated in the Declaration of Independence when we were declaring our independence was that King George wouldn't give us the right to trial by jury. So we should remember our roots as we go through these years.

TAYLOR: And I strongly echo that on the other side ... defense attorneys and plaintiff attorneys stand together on the importance of the jury system.

DICKSTEIN: And mediators, too. It seems that no one disagrees on that.

DEWEY: One of the things that we all learned tonight - or maybe already knew - is that it's so true that the private judging field is very much a part of that and it is the balance that is needed.