Why the Global Pound Conference Matters
Last week I attended an oral argument at the Appellate Division, First Judicial Department of the Supreme Court of the State of New York. As always, the experience was deeply moving. The sense of history and moral purpose that permeate our nation's courthouses always touches me very deeply. I sat in the spectator rows and listened to about a dozen different arguments, including ours, an appeal of a summary judgment dismissal of a party to a commercial dispute. The dispute involved business arrangements that had transpired years before I had joined my employer as General Counsel, but the case was still winding its way through the court system. Unfortunately this tortured crawl seems to be the rule when dealing with litigation in the 21st century.
For many of us in-house counsel the availability of mediation and other forms of alternative dispute resolution have seemed so promising, but unfortunately have often not lived up to our expectations. Of course, we all understand that disputes can only be settled when there are two willing parties, and often a party has its own reasons for continuing a litigation. At the same time, we can do better.
On too many occasions I have participated in settlement conferences and mediations where the settlement judges or mediators have pushed the parties in what I now, in hindsight, believe to have been heavy-handed and superficial ways, such as exclusively focusing on the numbers and making simplistic "split the baby" settlement proposals without allowing the disputants to work through their differences and come to an understanding of why a particular settlement proposal makes sense.
We in the legal community need to do a better job at educating ourselves and our clients about the nature of the mediation process. A few months ago I took the New York State Bar Association Commercial Mediation Training with Simeon Baum and Stephen Hochman. It was fabulous and I highly recommend it. I learned so much about the value of various mediation techniques. Those same techniques that I have so often seen completely disregarded, such as the value of a Joint Session, the value of a mediator making an effort to understand the needs of each of the parties, and the power of sophisticated and nuanced reality testing by the mediator.
In an article regarding a proposal to distinguish between conciliation (an evaluative process) and mediation (of the non-evaluative sort), Jeremy Lack, the GPC Series Coordinator at Global Pound Conference notes that, "[f]rom a user perspective, however, .... 'mediation' is still a relatively unknown and confusing word. The distinction between 'non-evaluative mediation' versus 'evaluative mediation', or 'mediation' versus 'conciliation', is not understood or clear. " This is my experience as well, and I believe that this confusion on the part of "users" is a significant reason why Alternative Dispute Resolution (ADR) is not living up to its promise, and why programs like the Pilot Mandatory Mediation Program in New York are not producing the hoped for results.
We can do better. There is a wealth of talent and goodwill in the legal community. If we harness that potential towards the goal of ending the gridlock in the legal system through the growth of ADR we will succeed.
Registration will soon open for the September 12, 2016, Global Pound Conference Series in New York titled, Shaping the Future of Dispute Resolution & Improving Access To Justice. The New York Conference is one of 39 such conferences being held world-wide with the stated goal of:
Creat[ing] a conversation about what can be done to improve access to justice and the quality of justice around the world in civil and commercial conflicts…through engaging all stakeholders in the field of dispute prevention and resolution worldwide via locally-based events
I am planning on being there. I hope that many others in our diverse legal community will participate as well