This writer’s 21st Century “branding” is “Senior Judge” when I am recalled to sit as a Trial Court Judge or as a Mediator for The Court of Special Appeals or one of the Trial Courts in Maryland. When I am not recalled, I function and am referred to as a “Mediator” or “Arbitrator” in the Private Sector. As such, I mediate or arbitrate disputes which may or may not be filed cases in state or federal court. By definition and by Court Rule, I am not “practicing law” which allows me to function in these multiple capacities in our criminal and civil justice “system”, although not historically without some degree of controversy.
With this background and experience, I noticed two books which evoke very distinctive, but in my opinion, complimentary themes. One book “Politics, Dialogue and The Evolution of Democracy” is authored by the renown Ken Cloke, whom I have had the pleasure of meeting and learning from on the subject of “coaching” conflict resolution. This book reflects on the role and necessary level of objectivity or neutrality required of an ADR Professional seeking to mediate the escalating intense political conflict in the U.S.
The other book is entitled “TOUGH CASES – Judges Tell the Stories of Some of The Hardest Decisions They’ve Ever Made.” This book, edited by Russell F. Canan, Gregory E. Mize and Frederick H. Weisberg, themselves State and D.C. Trial Court Judges and written by 13 Trial Court Judges, amongst them the editors, candidly discusses the complexity and therefore the inherent difficulty caused by the uncertainty surrounding what the resolution of these “hard” cases should be.
Both of these books are even more topical and important if considered in the context of remarks by the late Judge Learned Hand, whom many, including this writer, believe to have been the nation’s foremost jurist never nominated to The Supreme Court. Judge Hand said in 1944 as the nation waged World War II, “The spirit of liberty is the spirit which is not too sure it is right.”
Well, what happened to the “spirit of liberty” in the 21st Century? It is either extinct or well hidden, hopefully the later! At best – it is lost or indecipherable in a sea of “Talking Points” which ignore or evade complex political, economic, sociological, technological and psychological issues by rhetorically simplifying or trivializing those issues so that their complexity goes unnoticed.
Isn’t that what we are witnessing in this latest exhibition of this phenomenon– the political theater and accompanying drama over the “Government Shutdown” and “The Wall” which are being played out before a captive, unwilling and unwelcoming cast of 800,000 federal workers, whose price of admission includes at least temporarily their livelihoods and ability to plan for their families’ futures. Statements such as, “We need the wall to have Border Security”, “Open the Government first – then we’ll negotiate.” “The Wall is immoral” do not even acknowledge, let alone address the dimensions of the multi-disciplinary complexity of the issues which must be understood and discussed in order to resolve this situation/crisis. What they do in absolute terms without even a modicum of humility is say, “I’m sure I’m right and you are wrong” which is antithetical to the “spirit of liberty” Judge Learned Hand described so eloquently in the middle of a real crisis – World War II.
This attitude is noted even in the judiciary. Professor Dan Kahan of Yale Law School points out that while judges may acknowledge complexity and even uncertainty with their law clerks and in some instances, colleagues in chambers, their decisions and their opinions explaining them more often than not, “strike a pose of exact certitude.” The state court trial judges writing in their book “TOUGH CASES” however refreshingly confirm, as the editors point out in their introduction, that their book aims “to demystify judicial decision – making and to make the proves accessible and understandable to ordinary people who would not otherwise get a ringside seat. They succeed!
These state trial court judge authors only lament is their observation that because the judiciary is so “intensely hierarchical,” this humility is not widely shared at the highest levels of the judiciary, particularly at the federal level. Their book, “TOUGH CASES” however, illuminates the fact that lower court judges have much to teach judicial officers at the most elite levels of the judiciary about the importance of acknowledging complexity and difficulty. This is a hue and cry that I have no doubt my fellow “lower court judges” will enthusiastically, but with the requisite humility echo loudly and clearly whenever a forum is available to do so. That said, the demystifying of the federal judicial decision-making process if implemented might also dramatically reduce the vitriol and distrust expanding exponentially with the lack of humility observable in the confirmation process for federal appellate and U.S. Supreme Court judges and justices.
The inherent and increasing complexity of political issues in the United States whether they are to be decided by the legislative or executive branches of government or some arguably hybrid combination of the two resulting from either excessive deference or delegation of powers and influence by the Federal Congress to the Executive or by default of both to the judiciary, raises serious issues for those of us whose profession is conflict resolution and who could provide conflict resolution services to those involved in political and/or governmental disputes.
As Ken Cloke points out citing the two very different schools in his book, the fundamental question of who is qualified to mediate political issues and public disputes depends on the disputant’s perception of what constitutes “neutrality”. One view is best articulated by Professor Lawrence Suskind, founder of The Consensus Building Institute (CBI) at MIT and a professor in The Program on Negotiation at Harvard Law School, whose writing emphasizes that “Neutrality is central to the value we add as ADR Professionals and it is what allows us to earn the trust of all sides in a dispute.” In a nutshell, Professor Suskind’s view is that if you have taken a position(s) and it is known “there is no way anyone who disagrees with your position(s) will accept you as Mediator that they can trust.
That view is contrasted with the opinion of Professor Bernie Mayer of Creighton University who has written extensively on conflict resolution. Professor Mayer’s position is that it is not necessary for a “Neutral” to totally surrender or repress all of his/her political idea, moral and ethical beliefs in order to mediate or facilitate dialogues involving persons with opposing ideas and views as long as the “Neutral” projects sufficient humility to project his or her sincere belief that he or she “is not too sure he or she is 100% right, i.e. the “spirit of liberty” as Judge Learned Hand described it. That means that the Neutral must find constructive, diplomatic, practical and effective methods to confront unacceptable behavior and languages such as bullying, blackmail, and intimidation, while still being willing to recognize that people who behave and speak in these unacceptable ways can and do still have legitimate concerns that should be addressed. In other words, it is not and should not be required that a Mediator completely surrender his/her personal views in order to effectively mediate or facilitate a dialogue between persons with opposing views to our own. Bottom line in the words of anthropologist Laura Nader, it is not necessary to “trade justice for harmony.” That said, before any ADR Professional undertakes to mediate or arbitrate a dispute of any kind, but particularly one with a political component, the ADR Professional’s neutrality if questioned, should be discussed fully and thereafter unconditionally accepted by all parties and counsel or the case should not be accepted by the Mediator. I have personally engaged in those types of discussions with both parties and counsel when requested as a part of the Neutral selection process in various types of cases including commercial and professional liability claims and disputes, some with a political component. Without exception, those discussions have been substantive, without rancor, and in good faith. They have also resulted in a better-quality neutral selection process than would have occurred if they had not taken place and at the end of the day increased the likelihood of the underlying dispute being resolved.