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How we resolve our disputes

Entries in judges (5)


Who wants to go first? 

In mediation, the participants often spend much time trying to get each other to be the first to make a settlement offer. It is understandable that neither wants to be the first because they would both like to see how reasonable or unreasonable the other side is going to be. Then they can respond in kind. Fortunately for the mediator, the parties frequently have had settlement discussions before coming to mediation, and those discussions can help frame the initial offers in mediation. However, if that has not happened, it can be difficult convincing one of the parties to make the first move. 

Likewise, it can be difficult to get the parties to agree to enter into mediation at all. Many people, especially attorneys, see an adversary’s request for mediation as a sign of weakness. If they were prepared for trial and convinced they would win, why would they want to talk about settlement? Where I practice law and have litigated the most cases (Milwaukee County), the standard civil pretrial order requires mediation. It allows the parties to select any mediator they want, but if they cannot agree on one, the court names someone by default. In any event, neither party has to request mediation and appear to be unprepared for trial or less than certain of victory.

Unfortunately, this is not the practice in all counties in Wisconsin. Recently, I attended a “view from the bench” seminar in which trial judges gave tips to trial lawyers. One of the judges said he never ordered mediation unless one of the parties requested it. I believe the judge is missing an opportunity to be of service to the attorneys and their clients. The Judge can avoid the parties’ fear of appearing weak and give the attorneys cover by saying “the Judge made me do it.” The opportunity to settle well in advance of trial also avoids the spectre of one of the parties folding on the courthouse steps immediately before trial, thereby giving away the store or leaving money on the table, and wasting scarce court time. 

So, instead of asking the attorneys if they want mediation, a judge’s default pretrial order should require mediation. The Judge should strike the order for mediation only if he finds some reason not to order it. For example, if the case is one of first impression or if a precedent needs to be set regarding a new statute or constitutional provision, it may not be appropriate for mediation. If the attorneys have tried and settled many similar cases against each other, they may be familiar enough with each other and the process so they do not need a mediator to help guide them through it. Otherwise, the Judge would be doing a favor for the parties, their attorneys and the court system by ordering mediation. 


Electronic discovery and mediation

Recently, I attended a seminar sponsored by the American Bar Association and FINRA titled Utilizing Mediation to Navigate the Perils of Electronic Discovery in Arbitration. I have previously written about effect that the effort and cost of obtaining discovery from adverse parties has on litigation and prospects for settlement. Today, with increasing amounts of information being stored in electronic formats, the cost and effort of obtaining that information has soared. Frequently, the parties need to retain an IT specialist to search, find and interpret the records and data. In complex commercial and financial cases, especially when allegations of fraud are involved, the level of distrust between the parties makes settlement and discovery even more difficult. Judges and arbitrators do not like to wade through the reams of pleadings and documents that are often necessary to resolve disputes concerning electronically stored information (ESI). 

Enter the mediator. By focusing the parties’ attention on the specific issues, rather than on allegations of spoliation of evidence and threats of sanctions for discovery abuse, the mediator can help the parties devise a plan to allocate the costs and schedule the timing and manner of production of evidence, thereby maintaining confidentiality and credibility with the court or arbitration panel. A mediator familiar with the concepts of proportionality, privilege and data mapping can help the parties minimize the time, effort and expense they put into discovery. Thus, they can concentrate on prepartion of the case for trial or arbitration. After they obtain the information they feel they need, the parties might then return to mediation to fully evaluate their settlement options. 

It takes more time, effort and money to fully and properly prepare a case for trial or arbitration today than it did before the advent of ESI. The federal courts and FINRA (which supervises arbitration panels in many securities cases) have done much work lately to help the parties and the tribunals minimize the costs and time involved in resolving modern discovery disputes. Attorneys would serve their clients well by becoming adept at using mediation to relieve the parties and tribunals of most of these burdens. 


A New Year Wish

In his annual report on the judiciary, Chief Justice John Roberts expressed concern about the “economic downturn that has imposed budgetary constraints throughout the government, and the persistent problem of judicial vacancies in critically overworked districts.”  In most federal districts that I am familiar with, U.S. Magistrate Judges conduct settlement conferences in civil cases.  In state courts, if you want a neutral third-party to facilitate settlement discussions, you hire a mediator.  Why should the federal courts be different?  My wish for the new year is that the federal courts outsource or privatize the settlement function.  Want to save judges’ time and taxpayers’ money?  Let the judges (and magistrates) be judges.  Let mediators mediate.


Recuse me

In a prior post, I wondered whether anyone but me was paying attention to how we judge our judges. I still wonder about that, but at least now it seems that other legal policy wonks like me are paying attention to when a judge must recuse himself from hearing a case. Thanks to the U.S. Supreme Court’s decision in Caperton v. A. T. Massey Coal Co., courts around the country have been considering how to handle recusal motions.  In a 4-3 vote, the Wisconsin Supreme Court adopted rules amending the state’s Code of Judicial Conduct so that recusal is not required merely because a party to the proceedings contributed to the judge’s election campaign, or sponsored an independent expenditure or issue advocacy during the judicial campaign. The majority apparently rested on contributors’ First Amendment rights. In Florida, several committees of the Florida Bar are considering how judges should handle motions for disqualification. One of the alternatives they are considering is the equivalent of a peremptory challenge, like the judicial substitution rules in Wisconsin (Wis. Stats. secs. 801.58 and 971.20). Most attorneys and judges agree that those rules work rather well in the trial courts. It will be interesting to see if something like that can be applied in the appellate courts. For example, what if criminal defendants (or their defense attorneys) routinely filed substitution requests against an appellate or supreme court judge who had campaigned on the theme that he would be “tough on crime.” (Don’t they all?) Who would then sit in for that judge? Or would the court simply be shorthanded? Obviously, the details and mechanics of the rule need some work. But the idea that litigants should be able to “judge” the judges, by filing recusal motions or substitution requests, has some merit. Whether judges are elected or appointed, the litigants and attorneys who appear before them are best situated to judge their performance on the bench. Shouldn’t we give them some measurable and meaningful method of expressing their approval or disapproval? Money talks, but so does a motion to recuse, or request to substitute, a judge.


Judging judges

Some of my earlier blogs concerned selection of mediators and arbitrators.  One of my not-so-original or profound conclusions was that you must follow the money in order to tell where your mediator or arbitrator is coming from.  Obviously, the same conclusion applies to judges.  Whether the judge is appointed or elected, the public should know what he or she did before taking to the bench, and who supported (paid for) his election or appointment.  Despite increasingly partisan and costly judicial elections, Wisconsin Supreme Court Chief Justice Shirley Abrahamson has voiced her support for judicial elections.  However, a continuing dispute is whether we can or should limit what judges, and their supporters, can say or do in judicial elections.  Do the canons of judicial ethics restrict their campaign ads to any greater degree than ads for candidates for other offices?  Can judges, or their supporters, lie or tell half-truths during judicial elections?  A panel of judges is currently considering that question in Wisconsin.  The case involves a Wisconsin Judicial Commission complaint about statements made in ads supporting Wisconsin Supreme Court Justice Michael Gabelman’s successful election campaign last year against former Justice Louis Butler.  The spectacle of judges judging judges is fascinating for legal policy wonks like me.  I sometimes wonder if anyone else is paying attention.