Bias, Anyone?

Bias is a reality – we all know it.

Some time ago I attended an evening program for ADR professionals.  Our speaker was not a professional neutral, but she had made it a lifetime pursuit to study power, bias, and unequal bargaining strength.  She lectures all over the world on these topics for the purpose of servicing the needs of the disadvantaged. She holds a Ph.d, and as the evening progressed it was abundantly clear she had spent a lot of hours reading about, thinking about, and analyzing power and bias in human relationships.

She said a lot of things that resonated.  Her program was completely spellbinding. She spoke for only an hour, but of all the classroom instruction I’ve ever had this was clearly some of the most riveting.

What could she possibly say about bias that would be so riveting?  Bias is a reality – we all know it. But many of us – perhaps most of us – actively work to minimize (or eliminate if possible) our own personal bias.

My mother, bless her soul, had many stellar qualities.  But nobody would ever call her timid. She didn’t ride the tides – she made them.  Whenever she put her mind to something, watch out! It was going to happen, and nobody (and nothing) would ever get in her way.  (She told my wife, shortly after we were married, that my wife was the first person who had ever told her “No.” My mother was over 60 years old at the time).  None of my sisters are shy or retiring – I know first hand that women are (or can be) as strong or stronger than any man. I like to think I am completely devoid, in my own life, of gender bias.

The same goes for racial, ethnic, religious, or cultural bias –my life experiences have taught me enough for me to believe I am as unbiased as it’s possible to be.

But this program addressed a different kind of bias.  Our presenter observed that most mediators hold advanced degrees, and that they have more education than the average person.  Our presenter noted (correctly) that oftentimes parties come into mediation from disparate backgrounds. One party may be better funded, with the ability to hire a more experienced or more effective lawyer.  That party may also be more educated, more logical, and more analytical than less educated parties. As a result, a mediator may more readily identify with – and relate to – such a party. If this happens, the mediator may consciously (or subconsciously) defer to the position, requests or proposals of such a party, and thereby effectively afford this party greater “power” in the mediation.  In the words of the presenter “If you aren’t aware of this kind of bias, you may (as a mediator) unconsciously advance the aims and interests of the party with the greater power.” She noted that less educated people often think about things differently than their more educated, financially successful counterparts.

The net result is that a mediator may subtly – and unconsciously – slant a mediation toward the more powerful party.

This was a complete revelation.  It was instantly clear to me that she had identified a potential soft spot in the mediation process.  It may be easy to watch and listen to other people for indicators of their bias – but it’s not so easy to do with our own.  As mediators, we have to listen intently to words and subtle signals as to the values, desires, and preferences of parties and counsel.  If a mediator is biased or predisposed towards a logical, analytical, clear-thinking party, then is that mediator likely to unconsciously advance the interests of that party during the mediation?

On the other hand, should a mediator properly attempt to effect social justice by favoring the interests of a disadvantaged party?  Doing so would offend the concept of the mediator as a “neutral.” Life is unfair, and it is filled with inequality. Parties come into mediation with unequal bargaining power every day.  If a mediator is to be truly “neutral,” then he or she must take the parties as they find them. The mediator’s task definitely does not include any attempt at “social reform” or favoritism within the context of the mediation.

Does this mean that a party who enters a mediation with more power may come out of the mediation with a more powerful result?  Yes. But does that mean that a mediator should indulge a party in every attempt to control, derail or influence a mediation? Not at all.  An aggressive litigator recently told me that the concept of “true” mediation was foreign to them since they always participate in mediation with absolutely no intention of settling their case, but instead always use mediation solely as a vehicle to gather information so that they can “win big” at trial.  Mediators are charged with facilitating consensus between the parties. Every ethical tool, technique and approach can properly be used towards that end. But nothing obligates a mediator to facilitate a fishing expedition if one of the parties is not participating in good faith.

It’s an unending quest.  An effective mediator will collect information about the parties and identify their wants and needs.  And a good mediator will never consciously further any bias of the parties. But every mediator also needs to constantly work at identifying – and managing – their own biases so that they don’t interfere with the mediation process.   

 

Robert B. Jacobs is a mediator and arbitrator with over 30 years of litigation experience in business, real estate, and construction cases. He serves on the mediation panels for the Santa Clara County Superior Court and the Bar Association of San Francisco.  He’s a mediator for the Alameda County Superior Court and a Settlement Mentor for the Contra Costa County Superior Court. He also serves on executive committees for the ADR section of the Alameda County and Contra Costa County Bar Associations. Reach him at [email protected].  

 

The foregoing article is provided for general informational purposes and should not be used in connection with any specific legal matter.  Persons with legal issues or matters should consult competent legal counsel.

 

Adversarial Trust

We’ve all been through it.  You come out of law school and you’re loaded for bear.  All you’ve done for three years is read outrageous cases of every kind of wrong, loss, injury and damage.  Everybody’s suspect. Nobody can be trusted.

After the bar exam, people start mixing it up.  It’s no less of a fight than being in a boxing ring. Depos, document requests, motion practice – it’s all in there.  Get a few trials under your belt and you start feeling like a seasoned veteran.

After a few years something unexpected starts to happen.  The grappling that used to be so intense becomes less so. Client billing issues start rising to the surface.  Things get more streamlined.

What happened?  What’s made the difference?

Adversarial trust. Sounds like an incongruity, but it’s a reality.  It’s part of the way things get streamlined.

We live – and work – in an adversarial system.  We fight, we challenge, we dispute. It’s a big contest.  And yet after a while something changes. We realize it’s not worth the fight – nor the expense – to litigate every last point.  It’s too expensive. Sometimes the clients won’t stand for it. Once we recognize that, we suddenly realize that our perspective has changed.  We find that sometimes those people who opposed us — our adversaries – begin working with us in a cooperative fashion.

It’s something that we never expected straight out of law school.  But we start trusting (to a limited degree, and only in some situations) our adversaries.

How does this work?  It’s a bit of a dance.  If a client’s trial budget won’t withstand scorched-earth litigation, then we open up a bit of a dialogue with opposing counsel. Maybe we ask a few guarded questions about marginally important documents – or certain witnesses – or certain testimony.  Then we listen. And we listen. And listen. If the answers add up – if they makes sense – then maybe we don’t take that third party deposition. Maybe we don’t send out the third, fourth or fifth deposition subpena for business records. Maybe we decide to take our opponent’s word on it (and maybe we don’t).

It’s not a new concept.  Sometimes our adversaries lie to us – and sometimes they don’t.  Moscow and Washington have been adversaries for decades – and yet after the Cuban Missile Crisis they put together a direct hotline so they could talk to each other (and possibly avoid potential disastrous misunderstandings).  (The movie Failsafe with Henry Fonda and Larry Hagman relies on this kind of hotline).  

So how do you know when your adversary is telling the truth?  That’s the art of it. You don’t know. You make your best lawyerly guess – and then you either rely on their representations – or you don’t.

Why does this make a difference?  Because the ability to sort the truth from the deceptions can let you know where an adversary is,  what they might do, where they might go, or what they might pay. Some of your best settlement intelligence can come from the most unlikely source: your own adversary.  Those who recognize this early can save their clients big money, and those who don’t may find themselves missing significant opportunities.

This kind of sorting is a difficult task – but it’s often worth the effort.

 

Robert B. Jacobs is a mediator and arbitrator with over 30 years of litigation experience in business, real estate, and construction cases. He serves on the mediation panels for the Santa Clara County Superior Court and the Bar Association of San Francisco.  He’s a mediator for the Alameda County Superior Court and a Settlement Mentor for the Contra Costa County Superior Court. He also serves on executive committees for the ADR section of the Alameda County and Contra Costa County Bar Associations. Reach him at [email protected].  

 

The foregoing article is provided for general informational purposes and should not be used in connection with any specific legal matter.  Persons with legal issues or matters should consult competent legal counsel.

 

Getting to Trial

I remember going to trial as a young lawyer.  Everything rose in a crescendo to a fevered pitch just before trial.  The logistics, coordination and workup were monumental. After endless preparation, I’d show up at the courthouse ready to do battle.

And then the court would order a continuance.

I didn’t know (at first) that the courts set trial dates months down the road without any idea of how many courtrooms will be available on any given day.  We’d all show up with our witnesses ready to go only to find out that no courtrooms were available. We’d sit around all day and wait for something to break loose (and it often didn’t).  We’d then go back to our office and wait on “trial standby” for a week to see if a courtroom opened up. Our witnesses would cool their heels; our clients would get frustrated; we’d all stay on high alert for a week.  And then we’d get a call that no courtrooms were available and a new trial date would be set several months down the road.

Sound familiar?  Everybody’s been through it.  It’s not an efficient system. It’s like having your carrier overbook an airline flight – except nobody offers you a free ticket when your flight’s been oversold.

Older attorneys would sometimes lament that all they wanted was “a date certain” for trial.   But a master calendar system just doesn’t provide for certain trial dates.

Some counties have switched to using a single judge for all purposes.  In these counties, yours is the only case (or one of a very few case) set for trial in that department on a given date.  That way, you know you’ll go out to trial on the date that’s set (double scheduling still sometimes occur. But these courts usually scramble to find an available courtroom so that the trial date can be honored).  This system avoids some of the master calendar problems. But it may be a long, long time (i.e. over a year) before your assigned date comes up.

How can parties get to trial in a reasonable time without the re-setting problems of a master calendar system?  Binding arbitration is always a possibility. But there’s no right of appeal with arbitration, and some clients (or their counsel) don’t want that. Arbitrators have broad powers, and their decisions aren’t supposed to be reviewable for errors of law or judgment.  The prospect of an adverse decision can be just too daunting for some parties to bear.

There’s another option: judicial reference.  With a judicial reference, the parties stipulate to having their matter heard by a private judge.  It’s just like a bench trial, except it takes place outside the courthouse. The parties get to select their judge (how often does that happen?)  All the rules of evidence apply. See Evidence Code §300. The right to appeal is preserved. The parties present their case just like they would in a traditional courtroom. (See In re McNamee (1933) 131 Cal. App. 30, 31).  Even the public has a right to observe the proceedings (should anybody care to).  See California Rule of Court 3.931(a).

The upside?  The parties get to choose “a date certain,” they choose their judge, and they know exactly when their case will go to trial.

The downside?  The parties pay the referee’s fees.  But the parties are free to agree how those fees will be paid.   See Code of Civil Procedure §645.1(a).

The upshot?  If the cost of gearing up for a trial several times is higher than the cost of paying a referee for three or four days of hearing time, the parties might prefer a judicial reference.

 

Robert B. Jacobs is a mediator and arbitrator with over 30 years of litigation experience in business, real estate, and construction cases. He serves on the mediation panels for the Santa Clara County Superior Court and the Bar Association of San Francisco.  He’s a mediator for the Alameda County Superior Court and a Settlement Mentor for the Contra Costa County Superior Court. He also serves on executive committees for the ADR section of the Alameda County and Contra Costa County Bar Associations. Reach him at [email protected].  

 

The foregoing article is provided for general informational purposes and should not be used in connection with any specific legal matter.  Persons with legal issues or matters should consult competent legal counsel.

It’s About the Money – Or Not

Some time ago I attended an evening meeting for ADR professionals. Our presenter was extremely well-versed in conflict resolution. She teaches courses all over the world on human dynamics, power, mediation and conflict resolution. During the course of her presentation she made several comments that caught my attention. Among other things, she claimed that no disputes are truly about money.

Her claim surprised me. I’ve litigated for decades, and I’ve spoken to plenty of people about money. Sometimes it seems like the only thing that matters is the money, and for many years I’ve often said “It all comes down to money.” When our presenter said that no disputes are about money, I knew I would be asking her some follow-up questions.

After the presentation, I sat down at a table with her and with her non-attorney sister. Several ADR attorneys joined us. I asked the presenter about her “non-money” comment. She reaffirmed her position: “They (the conflicts) aren’t about money.” I responded, “Of course they are.” She said, “Give me an example.” I said “Take a personal injury case – there is wage loss, medical bills, pain and suffering. Clearly it’s about the money.” The presenter then started listing case examples where plaintiffs sought money, but where the real issue driving the litigation was actually something entirely different.

One of the lawyers at the table spoke up and described a case where a brother and sister, both in their eighties, were suing each other. His client (the brother) agreed to settle the dispute for far less than the attorney thought he should. The brother finally said “Now I will be able to sleep at night.” Clearly that litigant had non-monetary concerns that were bothering him. Was the litigation just too taxing for this octogenarian? Did he feel that he needed to salvage his relationship with his sister by taking less than he might otherwise get? Whatever the reason, something moved him to settle for less than his attorney thought he should accept.

After this story, one of the other attorneys shared a story about a personal injury case where a claimant was injured in a public facility due to negligence. During the case, this attorney asked the claimant how much money she wanted in settlement. The claimant had no idea – because the issue wasn’t really about money. The real issue was about an injury caused by a defendant’s negligence. The claimant wanted recognition and an apology – and she wanted the condition to be fixed so it didn’t happen again. The attorney observed “People make mistakes. If they (the public facility) had just acknowledged their mistake and apologized, it would have been all over. As it was, we went through a lot because they wouldn’t admit that.” That night I realized that many lawsuits have less to do with money and more to do with feelings, emotion, pride and the need to be respected.

The following story won’t come as a surprise to anybody who has been a litigator. I once litigated a case between family members that ended up in mediation. Emotions were high. Everybody was suspicious of everybody else’s motives. I finally said to the mediator (in private) “This isn’t about the money.” And it wasn’t. It was about respect. It was about emotion. It was about treatment. It was about equality. But sometimes the only way we can address those things is through a lawsuit about money. In those situations, the money is important, but only because of what the money represents. Sometimes a plaintiff can’t take less money, not because they want more money but because taking less would represent a victory for the other side, or an admission of defeat or wrongdoing themselves.

Notwithstanding these examples, some cases truly are about money. But others aren’t. Why is this important? Because a mediator who quickly and accurately discerns the true cause of conflict will be in a superior position to settle a case. If a party tells the mediator “It’s not about the money,” then a perceptive mediator will ask “Then what is it about?” Once a mediator finds out what the lawsuit is really about, the mediator can fully address the core issues. And once a mediator does that, the non-monetary case is far more likely to settle.

The foregoing article is provided for general informational purposes and should not be used in connection with any specific legal matter. Persons with legal issues or matters should consult an attorney.