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Law Rules

How we resolve our disputes

Entries in justice (2)

Friday
Oct072016

Mediation - the Justice of our Times

In an article about statute of limitations reform for child sex abuse victims, the author notes that Cardinal Timothy Dolan of the New York Archdiocese offered mediation and compensation as a means of resolving the claims against Catholic priests. The article states “Mediation is the justice of our times in the vast majority of cases,” and praises the resolution to the extent that it provides a “more efficient and private path for those survivors who would not choose the legal system.” I haven’t seen any statistics verifying that mediation is used in the “vast majority” of cases but, in my opinion, it should be. 

As an attorney, I have had cases that settled literally on the courthouse steps, sometimes with a jury in the box waiting to hear the case. In retrospect, I believe many of those cases could have been settled long before the trial date with the help of a mediator. Unfortunately, some parties prefer not to think about settling until they have fully prepared for trial. A good mediator should be able to help the parties prepare their cases, or at least to think about what it will take to prepare their cases for trial, and then focus on possible resolutions long before trial. 

As a mediator, I have seen parties come to a realization of the true value of their cases and the true costs and risks of fully preparing for trial well before the court’s trial date. Even if the parties are not fully satisfied with the settlement, at least they are relieved to be done with the costs and risks of going to trial. Sometimes, they are happy to have gotten something they could not have gotten in court, like confidentiality. 

The New York Archdiocese offered mediation as a means to awarding compensation to victims of clergy sexual abuse while at the same time keeping each complaint and award confidential and out of court. The mediation was offered before any pleadings were filed in court, without having to go through lengthy and costly motions and discovery. In my experience, such pre-filing mediation is rare. If it works to the satisfaction of both victims and the church, perhaps this will set a precedent for other potential litigants. Then, mediation will truly become the justice for our times. 

Monday
Feb072011

The law isn't justice

The title of this blog, Law Rules, has two meanings. First, the law is composed of rules about what we must and must not do in our daily and business lives as citizens of a civilized society. The rules also define how we resolve disputes about who has complied with the law and who has not. Second, it is often said that no one is above the law, and we are governed by laws, not by men. Of course, people make the laws. So the law, like people, can never be perfect.

Recently, I ran across the following quote by Raymond Chandler, author of private detective novels:

The law isn’t justice. It’s a very imperfect mechanism. If you press exactly the right buttons and are also lucky, justice may show up in the answer. A mechanism is all the law was ever intended to be.

Those of you who have read any of my previous posts have probably figured out that I agree with this thought completely. Litigation and arbitration are win-lose propositions. They are designed to search for the truth and put an end to the dispute. The dispute ultimately ends. Sometimes, truth and justice prevail. Justice requires that people treat each other fairly. The law can be one mechanism that occasionally helps us achieve justice, but it is not the only one. To achieve justice more frequently, our tool box must be much broader.