Diversity and Mediation

Hon. Ariel E. Belen (Ret.)

Hon. Ariel E. Belen (Ret.)

Imagine two parties locked in a bitter and acrimonious dispute that has gone through six years of hotly contested litigation. At issue are the ownership and control of at least a dozen commercial and residential properties valued in the tens of millions of dollars.

The litigants in this case were associated for nearly 40 years and had built up this large real estate enterprise from scratch. Unfortunately, they had a major and seemingly irreparable falling out and were no closer to resolving this case than they had been at its commencement. One of the litigants was a Latino immigrant, who felt deeply wronged by his former partner.

It is an axiom of mediation that emotional forces can disrupt communication and produce non-productive, if not outright irrational, decision-making. Although the broad outlines of the settlement should have been apparent to both sides for a long time, what was missing was the ability of a mediator to get beyond the parties’ huge emotional investment. What altered the negotiations was that the mediator almost always spoke in Spanish with this litigant and always listened very carefully to what he said and to what he did not say. This settlement, however, would be a rarity in today’s world of ADR because of the scarcity of Latino ADR practitioners in the United States.

Familiarity with cultural nuances, fluency in a language and diverse life experiences can be tremendously beneficial in the resolution of a dispute. A neutral who has these qualities may be much better suited to facilitate the disposition of a case precisely because so much of what drives litigation has to do with hidden agendas and personal idiosyncrasies. It has been said that “[a] mediator’s ability to navigate the cultural differences across disputing parties is paramount for success of dispute resolution …cultural competence is an essential skill in a mediator’s tool-kit… Cultural competence is a central skill a mediator must master.” These skills most come to bear during the private caucus sessions where a mediator in a confidential setting tries to gain the trust of a litigant.

Unfortunately, even as the United States becomes more and more diverse, there is a dearth of professional mediators from minority backgrounds. There are few statistics available, but most ADR providers mirror those from the federal bench, partner ranks in Global 100 Law Firms, C-suite and general counsel ranks of Fortune 100 companies.

In 2016, according to the ABA Women in the Law reported that 21.5 percent of the partners in those firms responding were women. In the courts, 33 percent of federal judges are women. In the Associate Ethnicity section of the 2016 NLJ 250/Am Law 200 Survey, Asian-Americans constituted 6.67 percent of lawyers at Am Law 200 and NLJ 250 firms; Latinos, 3.48 percent; African-Americans, 3.0 percent; self-described multiracial attorneys 1.69 percent; and Native Americans or Alaska natives, 0.18 percent.

Ironically, although large corporations have seen the value in diversifying their workforces, management and law departments, when these same corporations are considering or actually engage in litigation, their selection of diverse neutrals to mediate these disputes is often hampered by the lack of minority ADR practitioners. Like the lack of women ADR practitioners, this phenomenon is mainly attributable to what has been called both “supply side and demand side obstacles.”

The question then becomes how can corporations and corporate legal departments achieve greater diversity in their selection of ADR practitioners? To begin with, corporations could encourage their outside counsel both to diversify internally and to make a determined effort to hire more diverse neutrals when they decide to pursue ADR. This “encouragement” should come from the C-level because experience has demonstrated that the most successful corporate inclusion and diversity campaigns are those that are implemented with the full knowledge and support of C-level management.

Outside law firms that want to support a company’s diversity efforts could also independently seek out and utilize qualified minority neutrals outside their traditional network. Finally, ADR providers themselves could continue to focus on the recruitment and development of minority neutrals and promote them with the corporations and outside counsel who routinely use the providers’ services.

Of course, this is both a laudable goal and a highly practical one because diversity in mediation is not just good from a public relations standpoint, but it also contributes mightily to the early and inexpensive resolution of corporate litigation.

Selecting a Neutral at Case Inception

Louis Marlin, JAMS mediator and arbitrator

Louis Marlin, JAMS mediator and arbitrator

Every attorney who works as a litigator knows that litigation is a stressful and often frustrating exercise. Experienced litigators strive to provide the best representation for their clients while attempting to find ways to work cooperatively and cordially with opposing counsel. However, despite the efforts of well-meaning attorneys, it is the rare case where time-consuming disagreements do not interfere with the process.

Simply stated, I suggest that the parties select a professional “neutral” at the case inception to be available to resolve issues that present roadblocks to the cooperative and efficient progression of litigation. This approach addresses what I would call low-grade to moderate litigation-related disagreements, which I believe would save time and money—and lower litigation stress—for attorneys and their clients.

An early-selected neutral, with the agreement of both sides, could easily resolve issues such as (1) the order of taking depositions, (2) disputes over deposition locations, and (3) minor to moderate discovery disputes without the necessity of bringing motions and briefing issues that are easily handled in a telephonic conference, etc. By selecting a neutral at the commencement of the litigation, the neutral will become familiar with the basic legal issues and facts, thus enabling him or her to provide swift, efficient and cost-effective assistance to the attorneys.

Using this method, the parties can either agree that the neutral will only act as a “facilitator,” who attempts to get the parties to resolve their dispute by suggesting solutions to both sides. Or, if they wish, the parties can designate the neutral as the “decision-maker” for issues that they mutually agree should be presented to their neutral. The underlying concept is to create a method by which the parties can swiftly and cooperatively resolve the issues that normally arise in litigation.

By agreeing to this method, neither side makes any concessions. The selection of a neutral for this process does not represent a commitment to attempt to resolve the case at a later date. It simply represents an acknowledgement that both sides share equally in benefiting from finding the smoothest path to moving the case forward – whether to trial or settlement.

Make the Most of Your Mediation: The Neighbor Dispute

By Hon. Lynn Duryee (Ret.)

Hon. Lynn Duryee (Ret.)

Hon. Lynn Duryee (Ret.)

Disputes between neighbors are among the most blistering battles in the courthouse. As one advocate observed during a break in Day 3 of Hatfield v. McCoy, “At least in a divorce, one of the parties moves out of the house.” Like a divorce, neighbor disputes are expensive, emotional, and greatly in need of skillful resolution. Here are five tools lawyers and neutrals can use to settle these quarrelsome cases.

1. Engage experts to generate practical solutions. Regardless of whether the problem involves parking, property line encroachments, view obstructions, falling leaves or barking dogs, the right expert can help the parties focus on a fix rather than a fight. A design professional might come up with 50 solutions for a problem when a litigant sees only one. Even better, if the lawyers can manage to retain a joint expert, they can save their clients’ money – in shared expert costs – as well as grief. A respected joint expert can help the parties work together on finding a solution everyone can live with, and if the parties cannot agree on one, perhaps they trust the expert enough to ask for their recommendation.

2. Conduct a site inspection. Before the mediation, the participants should meet on site so that each neighbor can show the Neutral what the problem is and how they believe it can be solved. A site visit can help the Neutral understand what is most important to each party: Is it privacy, beauty, autonomy, peace? Is it parking, lighting, safety? The participants will be in a better position to negotiate solutions if everyone has a clear picture of the problems, site and potential solutions.

3. Help the parties trust the process. Commonly, warring neighbors enter mediation with a belief that the problem is 100% the fault of the neighbor, that the other guy is acting in bad faith, and that unless the neighbor is willing to move, resolution is impossible. This outlook makes it hard for each side to hear a different point of view. Lawyers can help their clients by modeling respect during the mediation. When an offer is presented from the adversary, listen to it carefully instead of dismissing it reflexively. When the Neutral describes the risks of going forward, support the Neutral’s concerns rather than taking issue with them. When the Neutral is comparing the last, best and final offer before going forward to trial, give the client a realistic assessment of the costs and risks of trial so that the client can choose wisely.

4. Allow sufficient time to mediate. When I teach mediation, I give students a hypo involving neighbors fighting over views and trees. In the hypo, the uphill neighbor hates the downhill neighbor’s trees because they block his view. The downhill neighbor loves the trees because they protect her from the uphill neighbor’s lights and noise. Students solve the problem in 5 minutes by agreeing to trim trees, move lights, and reduce noise. They are incredulous to learn that in real life, such a problem would likely take a day to settle. Why? Isn’t the solution obvious? Maybe. But people don’t like living their lives to suit their neighbors. They resent having to change something on their land to suit someone else. They are sometimes embarrassed to be involved in litigation over a problem they feel that they should have been able to settle without legal action. They feel like they are right and shouldn’t have to compromise. Perhaps they have spent a small fortune in fees and feel that they should be getting more for their money. These issues take time and sensitivity to sort through. Fortunately, once these issues are identified and discussed, parties can then find solutions almost as easily as my mediation students.

5. Be part of the solution. The lawyers most likely to achieve settlement in these emotional cases have gone out of their way to cultivate a professional relationship with opposing party. They have been able to exchange and appreciate the strengths and weaknesses of their own case as well as their opponent’s. They have counseled their clients on how stressful and expensive a trial will be and how unsatisfying its outcome is likely to seem. They have told their clients that what seems so important to them may not strike a judge or jury the same way. They approach mediation with a mind open to entertaining creative solutions. They keep discussions moving when discouragement creeps in. These are the lawyers whose clients are most likely to sign settlements and releases at the end of the day.

There are notorious neighbor cases that end in gunfire. There are sad ones that end with both parties selling their homes and moving elsewhere. Some go to trial and end up with a decision that seems to change nothing. And then there are those few that end with an agreement to trim the trees, try a little harder and maybe look the other way when the car is parked illegally.

They say that good fences make good neighbors. So too can good lawyers and mediations.

Diversity Matters

A casual look around the room at any major mediation conference will quickly confirm that women and minorities are still significantly under represented. It may be a long slow journey to create more representative panels worldwide, but one that is well worth taking.

According to the ABA in April 2016, nearly half of all law degrees issued in the United States in the previous academic year were to women. However, if you look at elite law firms, only 18 percent of the partners at the top 200 firms are women. Within that same environment the numbers of Black, Latino and Asian partners represent an even smaller percentage  Few statistics are available to identify how many mediators in the U.S. are women or from an individual ethnic group, but it is safe to assume that they likely parallel the statistics in the elite law firms.

In an area of law where nuance and creativity are most highly valued, including more women and more people from different cultural backgrounds can only enhance the success of mediations.  Creative problem solving, the ability to leverage different types of communications styles and a real sensitivity to important cultural issues are among the most important skill sets a mediator or arbitrator bring to a case.

The pool of neutrals available to hear cases should more closely reflect the demographics of the population they serve; this is one of the most important ways to ensure successful resolution of cases and the ongoing growth of mediation as a dispute resolution tool.  Training and developing a younger, more diverse group of mediators is one of the best ways to ensure that mediation continues to grow as a conflict resolution tool.

ADR providers like JAMS and others recognize the importance of increased diversity among ADR practitioners. They have challenged law firms, corporations and legal organizations to consider women and ethnically diverse neutrals, track their firms’ neutral selection process to measure progress and provide resources to diverse professionals on preparing for a successful career in ADR. Finally they encourage their clients to consider diversity in their selection of ADR professionals.