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The Debate over the Law

May 8, 2013

In a refreshing TV show on PBS last night about the US Constitution, called Constitution USA with Peter Sagal, one underlying theme was the unending debate, that tension between competing interests, that makes the Constitution so interesting and valuable.

The subject last night was federalism and the tension between the powers of the federal government vs. the power of the states.

A good example is the conflict over the sale of marijuana, legal under California law in certain circumstances and completely illegal under federal law.

Nearly every mediation includes a debate about the law, i.e, which law applies, and how it will affect the outcome.

Lawyers love the debate and the interpretation and application of law.  I do.  After all, that is the reason we went to law school.  It’s fun, it’s endlessly fascinating, and it’s challenging.

It is also a trap in mediation.

Certainly there are cases where the application and interpretation of law supersede all other concerns, and those are the cases that really need to be adjudicated and not settled in mediation.  (I’m thinking of declaratory relief actions for example.)

But not every case is like that, unless the participants dwell on the law (or the trial outcome based on it) to the exclusion of all other needs and interests of the parties.

When the participants take into account the risks and expenses of trial, and other matters like privacy, improving relationships, reputation, business interests, or even the emotional relief of simply ending the dispute, the final outcome based on the law becomes less important.

And the debate over the law recedes into the background for that mediation.

At that point, the parties hedge their bets.  They become less focused on the “all or nothing at all” trial outcome and look for a compromised solution that meets their collective needs.

Competent attorneys counseling their clients realize that the law plays an important role in mediation and also understand that there are other factors at issue.  They help their clients to see that the case can be settled without ever deciding the outcome.

For the lawyers, as with the Constitution, the exciting debate remains for another day in another case or for academic purposes.

And the clients have benefited nevertheless.

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From → Law, Mediation

2 Comments
  1. I completely agree, David. Unfortunately, I cannot say the same for all attorneys and judicial officers. In fact, each year, the Beverly Hills Bar Association has its “Annual Supreme Court Luncheon.” I have been attending that event for many years. Last year, I actually heard Chief Justice Tani Cantil-Sakauye say that she was troubled by the fact that an increasing number of cases were being resolved through mediation and other forms of consensual dispute resolution. The reason for her concern was that this resulted in a decreasing number of appellate cases and therefore less case law being created. I had to ask the attorney sitting next to me if I heard her correctly. I did!

    From my vantage point, the parties would not have resolved their dispute in mediation or another form of consensual dispute resolution process, unless they were satisfied with the resolution reached. Otherwise, the process would have failed and the case would have gone to the trial in the Superior Court. Keep in mind that the only time that a case goes on appeal is if one or both parties were unhappy with the result and believe that the decision can be overturned on appeal. Thus, at least one party is not happy with the decision by the trial court. If the case never gets to the trial court, the parties must have been satisfied with the result. Furthermore, there is nothing to appeal when the parties are satisfied with the resolution and reached it on their own, even with the help of other professionals.

    My take away from that speech was that the ability to create case law should take precedence over a mutually satisfying or satisfactory resolution. I was horrified, to say the least.

    If our judicial offers believe that certain laws should be made and the issues are not reaching their courtrooms in order to make case law, why can’t they have such laws enacted by our legislatures?

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