More About Not ‘Seeing You in Court’

THE OPEN MIND
Host: Richard D. Heffner
Guest: Margaret Shaw
Title: “More About Not ‘Seeing You in Court’”
VTR: 11/17/91

HEFFNER: I’m Richard Heffner, your host on THE OPEN MIND…and when I began a recent program about a new approach to America’s rampant litigiousness, I quoted William Shakespeare’s “The first thing we do, let’s kill all the lawyers”. Now, then, of course, I half apologized since, after all, my younger son and so many of my other favorite people are lawyers. But I also noted that in some places these days their profession is held in something less than high repute…and if there does, indeed, seem in many instances to be an alternative resolution for disputes that otherwise keep lawyers employed, but also increasingly pressure and literally clog our traditional court system, then there may well be some cause for cheer and encouragement, particularly when ADR – Alternative Dispute Resolution – as the late great legal scholar Dean Robert McKay claimed, offers greater litigant satisfaction, often leading to more expeditious disposition of disputes at lower costs and with parties having greater control of the progress of their cases (which also may ordinarily be kept private, out of the glare of disruptive, damaging publicity).

Well then I discussed ADR here on THE OPEN MIND with two friends, each with a profound personal stake in urging this innovative approach to conflict upon the public and upon their fellow professionals at the bar…but I decided, too to pursue the matter today with perhaps a more neutral expert who teaches alternative dispute resolution at the New York University Law School. Indeed, while most of my lawyer guests present themselves first and foremost as practicing attorneys, Margaret Shaw identifies herself as a “practicing neutral”, a delightfully evocative phrase that I’ll right off ask her to elaborate upon. What is this “practicing neutral” business?

Shaw: Well I guess what it describes is a different approach to clients or parties, and that is that you’re not there to advocate for one person’s interests or another person’s interests, but rather to help the parties understand what their dispute is all about and come up with their own mutually satisfying resolution.

Heffner: Why?

Shaw: Why that as opposed to lawyering and advocating in court, for example.

Heffner: Yeah, yeah. I mean I ask frequently about why the advocacy, the advocacy system, and I, I get very strong answers. Why the neutrality?

Shaw: Well, I guess it’s a very different approach to disputes. My own feeling is that very often although the court is very appropriate for a lot of kinds of disputes, there are other kinds of disputes where it may be more appropriate to look at, not the legal issues, but what the people are really interested in resolving, which is some of their underlying needs and interests. And very often our legal system is set up so that one side argues its position as forcefully as possible and the other defends it or counter-argues their position, and what you get is a decision that very often addresses the legal interests, but may not leave the parties as satisfied as they can be if they are allowed to talk about what really matters to them which very often is not the legal interests in a dispute.

Heffner: Like what?

Shaw: Well, I suppose that in some ways you could talk about…just take a very simple kind of case like a landlord/tenant dispute, where whether or not the tenant gets evicted, or the landlord gets to claim the rent, what may be more important to them is finding some way to deal with each other in the future in such a way that they can…that, that the tenant can find a way to live more comfortably in the building, and the landlord not to be bothered so by whatever is bothering him in the tenant’s behavior. It very often can appear with a business dispute where you may have two businesses arguing…a supplier and a consumer…arguing over “widgets” for example, and a purely legal dispute may leave one with some money and the other out some money, but what may really be best for them in terms of their business interests is to continue doing business, only with their understandings modified.

Heffner: Well, do you find then that there is some basic tension between the attorney as advocate, and the attorney as neutral?

Shaw: I don’t think there’s necessarily tension; I think it’s just a very different role. One of the things, as you mention, I am teaching ADR at NYU Law School. And one of the reasons for teaching these kinds of courses in law schools, which is being done increasingly around the country, is to have lawyers see themselves from a different perspective. In other words, traditionally, I think the way lawyers have operated is to be the experts. And a client will come in and they’ll tell them what their legal remedies are, and essentially take over the dispute. A different approach is a more client-centered kind of approach where the lawyer works with the client to find out what their needs and interests are, and the result of that may be a lawsuit, it may be some other mechanism to satisfy what their real interests are.

Heffner: Does that suggest that lawyers’ traditional approach provokes and stimulates lawsuits rather than provides for resolutions?

Shaw: Well, I think it has, although I think that’s changing. I think increasing numbers of lawyers are looking at what alternative mechanisms there are, and ways of dealing with clients that don’t necessarily mean that they end up taking their cases to court.

Heffner: Why? Doesn’t, doesn’t one find a good deal of satisfaction in the notion that in disputes…

Shaw: …yes…

Heffner: …there is that resolving mechanism…the law…the court system.

Shaw: Well, that’s certainly there as a background. In fact, I think Alternative Dispute Resolution may be a misnomer. Complimentary Dispute Resolution is what the New Jersey court calls it. Which is a way of looking at various levels of disputing and, in fact, it’s happening in the corporate world as well, where increasing dispute resolution systems are designed to try to resolve disputes at the lowest possible level. And if people can be encouraged to deal…one on one with each other, before making things into a lawsuit, which is very expensive, takes a long time and ultimately may end up with a result that doesn’t meet their interests, they should be encouraged to address it at a lower level.

Heffner: What do you mean when you say, “may end up with a result that doesn’t meet their interests”?

Shaw: Well, I think that…very often the way people approach disputes and lawyers encourage them, or have encouraged them to look at disputes, or to find out who is legally wrong. I’m reminded of…we had some students working for us at the Institute of Judicial Administration and one of them was a Chinese student, and we were talking about the approach to disputes, and she said, “you know, it’s really funny because in this country when there’s a contract dispute, what we often do is say “well, who is wrong?” and “who breached the contract?”, and very often a different way of looking at it is, “What’s wrong with the contract”? And it’s a very different approach to a kind of dispute and that is “where have things gone wrong? How can we understand what did go wrong and find a solution to it?” That doesn’t necessarily mean that one person pays another damages and they sever their relationship, and one feels very righteous and the other feels sorry that they have not won court and has to pay a lot of legal fees.

Heffner: You know, it’s very interesting that you say that because my assumption has been for so long now, as I watch my legal friends, here at this table, in particular, that it isn’t a matter of who or what is right, or who or what is wrong, but who wins and who loses. Now that has been…it has become my picture of what the law is all about. Is that an unfair interpretation of the way the law is practiced in this country?

Shaw: It is the way…often the result of a lawsuit. Hopefully more and more lawyers are practicing law in a different way so that it’s not necessarily a problem…isn’t looked at as a distributive problem where one gets a bigger piece of the pie than the other, but rather “how can both parties get their interests met in a solution that’s more an integrative…what we might call an “integrative” kind of solution?

Heffner: And you work on the assumption then, that that is possible?

Shaw: Yes.

Heffner: It’s likely and I gather your experience is that it happens.

Shaw: I think that is very possible in a great many cases. I think there are some cases where it’s not possible. For example, if you take a personal injury case where the parties are interested in a very quick solution…they may prefer, and where the…essentially the damages involve the payment of money and not much else. I mean there are those who argue that you could make it into a more…you could expand the issues by talking about the time of payment and the method of payment. But nevertheless in personal injury kinds of cases, it essentially involves the payment of money. And that kind of case you may be better off with an ADR process such as arbitration, or in fact, going to court, and less of a collaborative problem solving kind of process such as mediation.

Heffner: But you know, I wonder as we speak whether ADR doesn’t fit into, doesn’t accommodate perhaps too much of the, the, the assumption that we make perhaps, very widely in our society today is “let’s see what we can do”. You go along, you get along, you compromise here, you compromise there rather than what, indeed, is wrong and what, indeed, is right. Is this such a…is this progress or retrogression that we’re emphasizing getting along and resolving rather than doing what is right?

Shaw: Well, I guess what troubles me about your question is the assumption that you either “get along” or you do “what’s right”. (Laughter)

Heffner: Well?

Shaw: And it seems to me that there’s a possible way to resolve disputes I such a way that relationships can be enhanced and you can tailor-make a solution to meet your needs and still get those needs met in a way that doesn’t necessarily mean that there is a judge who is saying that “according to this legal doctrine…you win”.

Heffner: But I thought a moment ago you really were saying that…you talked about a Chinese student…

Shaw: Yes.

Heffner: …a participant in your work at, at the…

Shaw: Institute of Judicial Administration.

Heffner: Okay. And said, “In China we, we try to resolve conflict, and there you people are talking about ‘right and wrong’”. Isn’t that what I’m suggesting and is there something wrong about that? Isn’t, aren’t you now trying to impose this notion of “getting along” rather than discovering who is right and who is wrong, and when you no longer discover, no longer put a premium upon being right or wrong what happens to our society?

Shaw: Well, I think we have to distinguish between kinds of cases here.

Heffner: Yes.

Shaw: I guess that, certainly if you’re taking something like a criminal case, where it’s important to discover what the past behavior was, and does that violate certain kinds of laws or in fact where there are statutory protections that the Legislature has enacted, it may be very important to have those decided by a court so that there are a class of people that the Legislature has declared need protection…will, in fact, be protected. But I guess I would debate whether in fact…I mean what good does it do necessarily to say who is right and who is wrong…isn’t what’s more important in a lot of kinds of cases how are we going to get along in the future and get our future needs met?

Heffner: Well, there again, you get along, you go along and you get along. We’re so…we put our emphasis so much these days upon accommodation that it seems to me…

Shaw: I understand…

Heffner: …that that is what…what you’re talking about and what happens to principle if we become even more a pragmatic nation?

Shaw: Well, let me tell you a story I think will illustrate it…

Heffner: Please.

Shaw: …because I think what it sounds like your assumption is that getting along and accommodating means somehow compromise. And there’s the famous story that was attributed to, I guess, Mary Parker Follett year back where two men sitting in the library studying, and I will try to shorten this one, one gets up, opens the window, sits down. The other one quietly gets up and closes the window. Before too long the other guy gets up and slams the window open…before he’s even in his seat, the other guy gets down and closes the window. So the question, of course, is “should the window be open or closed?” Which is often what the kind of dispute is in our courts. So, either if it were a judge deciding…the window would stay open or it would stay closed, depending upon what the legal principles were. What you’re talking about accommodation might be that someone comes along and says, “Well, let’ leave it open three-quarters”, and somebody…both lose a little bit, but maybe they feel okay because either one lost. The end of the story, or course, is that the librarian comes along and she turns to the first man and she says, “Why do you want the window open?” And he said, “It’s so hot and stuffy in here…I’ve got a deadline coming and I’m afraid I’m going to fall asleep”. She turns to the other man and she says, “Why do you want the window closed?” And he said, “Well, I tell you, I’ve been very sick this past week and it’s creating a terrible draft on my neck”. So what she does is she goes into the next room and opens a window, which means fresh air, no draft. That’s what we might call an integrative solution, which is only possible because the librarian took the time to ask each of the parties what their underlying interests were. Why? And that’s what we’re talking about about some of these…some kinds of alternative dispute resolution processes, that ultimately there are solutions that are possible that are more satisfying to both parties, that don’t necessarily rely on the application of legal principles.

Heffner: Ms. Shaw you put that so beautifully and you haven’t convinced me…

Shaw: (Laughter)

Heffner: …but you put is so beautifully and I understand what it is that you’re saying. I don’t want to press this matter of accommodation further…

Shaw: Okay.

Heffner: …but I, I do wonder sometimes whether our problem in this country, at this time, is not our failure to find accommodations, but our failure to maintain principles…and that means right and wrong.

Shaw: Well, I guess I would disagree. I mean I think that there is sometimes a failure of principle, but I think that what you’re suggesting implies that here are no principles applied in Alternative Dispute Resolution and in fact, one of the hallmarks is that there are…the decisions that people come up with are very principled decisions. But the principles are their own principles rather than those that are implied by, or imposed by a legal system.

Heffner: But aren’t the principles simply situational? Isn’t this a matter of situational ethics? I mean if you’re…if you…as the neutral…

Shaw: Yes.

Heffner: …can get A over here and B over there to agree and feel that their mutual interests have been sufficiently met…that’s it. And that’s as far as it goes.

Shaw: Yes.

Heffner: So, what’s your role there?

Shaw: Well, I think…is what is behind your question the question that if everyone goes and resolves their dispute in some alternative process we will no longer have any kind of precedents or certainly in our law to guide future behavior?

Heffner: I knew you would say it better than I did.

Shaw: (Laughter)

Heffner: Yes, indeed.

Shaw: Well, I think that’s a real concern and I by no means want to sit here and be an advocate for ADR for every kind of case. I mean the clear example that people often cite is “Well, you certainly wouldn’t have wanted to have mediated Brown versus the Board of Education”. On the other hand, the countervailing value is that shouldn’t someone who has had their rights violated be, because of their own interests perhaps…if you take a Human Rights Commission dispute, for example, where they’re beginning to use alternative processes, shouldn’t I, if I have been discriminated against also have the freedom to bargain away my rights for something that I care about more which may be a reference for a future job, or some monetary payment or something else. And I think it’s not an easy answer. I think we struggle with that and I’m not sure where the answer is. My conviction is that there will be enough cases still brought before our courts to provide the kind of certainly in our laws and precedents that we need in a society. At the same time, I think that people ought to be…there ought to be other options available to people to resolve their disputes in a way that will be very satisfying to them.

Heffner: Well, it’s interesting you use the example that you do. Don’t you think it’s important to maintain, not to permit someone to bargain away…for her or for his immediate satisfaction? Don’t you think society stands to lose potentially in that kind of situation?

Shaw: Well, I, I recognize I’m sort of out on a limb here…

Heffner: Right. I don’t really want to saw it off.

Shaw: …you don’t want to push me off, do you? I, I think what troubles me is that if I have a complaint of discrimination, do I have to…should society force me to spend the money and time it takes to get that resolved in court? Or shouldn’t I also be able to resolve it in a way that’s satisfying to me? The concern I would have is a public…a matter of public policy is have I knowingly waived my rights? And I think one of the big concerns that people have about ADR, which I think is a very important concern is…when people get into this process are they unknowingly bargaining away rights that they have?

Heffner: Well, my concern, of course, is not that they may, individually, be knowingly or unknowingly, but rather that society’s stake in the clear and open and privacy, I gather, is one of the…considered one of the plusses of ADR. That you…well, let me put it this way…let me ask you the question.

Shaw: Okay.

Heffner: If the court system worked as expeditiously, given the resources that it needs…if it worked as quickly as you and I, all of us would like…

Shaw: Yes.

Heffner: …would you still find an important place for ADR?

Shaw: Definitely. I don’t think it’s a matter of the courts taking too long and costing too much money. I think that’s a concern that we all have and certainly a lot of court use and encouragement of alternatives is based on that difficulty. But I also think that it’s a qualitative difference. I think there are some disputes in which better solutions are reached in ADR than in the courts. It’s not just a cost and deficiency kind of argument for ADR.

Heffner: Does that mean that those who act as the neutrals, as you do, are essentially philosophers, psychologists or practice philosophy and psychology rather than law, as it has been practiced in this country?

Shaw: I would say that I don’t practice law when I’m practicing as a neutral, but I wouldn’t say that I practice as a psychologist necessarily, either, or any other profession, because I thin that what I am doing essentially is really helping the parties themselves to understand their own underlying interests and priorities and helping them try to find a way together to accommodate those interests in a solution that’s going to work for them. So that it’s not so much that I am advising them, in any kind of sense, but using my own process skills to help them come to a solution which will meet their needs.

Heffner: Well, I think of perhaps a sexual harassment suit…

Shaw: Yes.

Heffner: …or a…strike the word “suit”…

Shaw: Okay.

Heffner: …alright…conflict…

Shaw: Okay.

Heffner: …dispute…where it would seem to me to be enormously important that the individuals involved feel satisfied to the degree…

Shaw: Absolutely.

Heffner: …that they can, but more important that society recognizes its stake, so that it can set the precedents, it can make the decision as to what the resolution of this conflict is.

Shaw: Well I…obviously a very good example that you raise. And I feel as strongly as you do that there should be very clear guidelines and standards for behavior in the sexual harassment area. However, I think that…I guess I have a lot of faith in the fact that there will be enough lawsuits brought before the courts, where those kinds of principles and standards will be established. I think what I’m saying is that alongside of that, if I personally have a sexual harassment suit and knowingly waive my rights that I could have in court, to resolve it myself…society shouldn’t force me to resolve it through the courts.

Heffner: Aren’t you…aren’t you damaging society in a sense that way?

Shaw: How?

Heffner: By taking away from society, in that instance, the ability to make a social determination of what we as a people want to see happen, not what accommodates this one’s needs and that one’s needs in terms of an immediate situation. That’s why I referred to situation ethics.

Shaw: Well, I must acknowledge this is a very controversial and tricky area because I think what one weighs is individual rights and freedoms to determine…and autonomy to resolve one’s disputes as one sees fit, versus the public interest. In fact, in making sure that people comply with certain kinds of behavior. For me the integration of those tow positions comes about because I think that in the sexual harassment area, for example, there are agencies and public organizations that are mandated to insure that there is compliance with the laws that exist. So that I’m less troubled about the fact that I or someone else may be able to resolve something like a sexual harassment suit privately, because of the fact that first of all, there would be judicial review if someone tries to enforce the agreement, and secondly that there is some public entity that has the mandate of enforcing those laws. So that I’m not troubled by the fact that our society will suddenly have no way of taking care of…or, or that sexual harassment standards will suddenly dissipate into the ground because everyone is resolving their disputes privately.

Heffner: What about the matter of…now Bob McKay touched on this in this extraordinary article that he wrote on “Ethical Considerations and Alternative Dispute Resolution”. What about the capacity, the ability of the neutrals…what do they need? Is there training…

Shaw: Well, again, that’s a very…a subject that’s of much debate in the field right now, particularly as more and more courts set up court connected programs and more and more public agencies have their own roster of neutrals. By and large the qualifications for neutrals have been based, to date, on degrees…if you have a law degree, a mental health degree, something else, and there is a growing sentiment that really doesn’t make any sense…because what counts is the performance of the neutral, not what kind of educational background thy have. I think that because we still don’t… are not very sophisticated about performance based testing, and there are people around the country who are working on that right now, for neutrals, the best that we can do is require a certain level of training and experience. And there’s no substitute for training and experience. Certainly experience is important…the more you mediate or the more you…let’s take mediation as an example, the better you get at it…at the same time the training provides you with a conceptual framework within which you can fit your experience. And there are lots of ways of getting that. For example, many programs have co-mediation…or apprenticeship kinds of programs, to that people can get experience before they’re asked to mediate on their own. In some kinds of cases, I think subject matter expertise is important, not because you’re there to advise the parties, but for example, if I were asked to do a construction dispute, I would not want my lack of understanding about practices in the construction industry to get in the way of the parties’ communications. So I’d have to have a level of subject matter expertise so that I could assist the parties rather than get in their way in terms of their communications.

Heffner: To what degree does your training in the law get in the way of you’re being a neutral?

Shaw: Well, if you’re talking about a process like mediation, which is the process that I seemed to have been focusing on a great deal during this conversation, I think in some ways it gets in the way, it can get in the way…it has the potential of getting in the way, in the sense that the way lawyers frame issues is very different from the way mediators frame issues, and lawyers are trained to hear legal issues, as opposed to…it’s almost like learning a new language. As opposed to listening from what a party says and trying to understand “what is the interest they’re trying to express?”, and how can I frame that into an issue that both parties are going to be willing to work on? As opposed to listening for a possible position.

Heffner: Now, we have a minute and a half or so left, and I must ask about this matter of privacy…what you personally feel about the, the ups and downs…the downside of this in terms of privacy.

Shaw: It’s a…I’m sorry we only have a minute and a half…it’s probably one of the most complicated topics in the field right now, because whereas people talk about one of the benefits of ADR of being its privacy, there are many, many instances in which there is no guarantee of privacy, and in fact, there shouldn’t be a guarantee of privacy. Instances, for example, I mean take the simple example if you hear in a mediation that someone has abused a child, there are statutes that mandate reporting for that. There are other kinds of situations, also, where…if the two parties agree, certainly they ought to be able to disclose, but there are situations where, for example…

Heffner: They’ll be able to disclose or not disclose?

Shaw: They ought to be able to disclose if they want to.

Heffner: I see.

Shaw: So it’s the parties that hold the privilege, not the mediator. Other kinds of situations, for example, suppose I’m mediating and the two parties want to sue me for malpractice. Shouldn’t they be able to disclose what went on in the mediation session and I would argue that that’s an exception that should be held to in term so of confidentiality. There are others like them…the state statutes vary all over the map in terms of what’s protected. In fact, what’s difficult in being a neutral is to try to describe what kind of confidentiality can exist…it’s a very complicated subject and could take me as long as a half hour, and in fact, it may mislead the parties. As another example, the court may say that there’s more harm in non-disclosure than there would be from disclosure, and despite the fact that people thought they had confidentiality, may require disclosure.

Heffner: Some other time, Margaret Shaw, we’ll spend that half hour talking about that very issue, but today I want to thank you for joining me here on THE OPEN MIND.

Shaw: Thanks.

Heffner: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you’d like to share your thoughts about our program, our topic, our guest, please write THE OPEN MIND, P.O. Box 7977, F.D.R. Station, New York, NY 10150. For transcripts, send $2.00 in check or money order. In the meantime, as an old friend used to say, “Good night, and good luck”.

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