Ways to resolve our everyday disputes - by Judge Jim Gray

Looking back over my career as a trial court judge, I believe that the thing that brought me the most gratification was helping people to resolve their disputes voluntarily. In fact, in my current work as a private mediator I am still able to do that, so the gratification continues.

But upon reflection, many of the things that I do professionally to facilitate voluntary resolutions of disputes could also be utilized by everyone to resolve their daily disputes. So I thought I would use today’s column to pass along some of the tips that I have learned throughout the years, and I recommend you consider and employ them, and even discuss them with your children and grandchildren to help train them to be peacemakers.

One tool to use at the beginning of settlement discussions is to anticipate the moments in which people on one side or the other may get emotional or upset by asking questions like: “How should we handle it when. . . ?” Many times, settlement discussions are frustrated by these situations. But if you have anticipated them by asking this question, people will see the emotions for what they are, and be able to get through them.

Probably the most important tool in dispute resolution is listening actively. In fact it should not be considered to be an accident that the word “listen” has the same exact letters in it as the word “silent.” Not only will you receive important and often subtle information simply by listening to people as they set forth their grievances, you will also gain their confidence by showing that you are willing to consider their feelings and positions. So understand that there is a huge difference between the act of listening, and the act of simply waiting to talk.

In addition, sometimes people simply need to vent before any serious discussions can begin. So take the time to listen to them, and interrupt only with brief, clarifying questions. This will show them that you are listening and interested, but it will not interfere with the flow of their thoughts.

It is also important to focus upon the fact that the act of listening is not at all the same thing as agreeing. But seldom can disputes be resolved by people who do not understand the position of each side. Then once the person has finished, it can often be helpful to summarize in your own words what that person has said. This will help to put things into perspective, and also show everyone involved that you understand what the issues are.

At this point you can effectively bring up problem areas with each side’s positions by asking neutral but realistic questions. For example, if one person says that she loves to play Beethoven really loudly in her apartment because it is wonderful music that everyone should enjoy, and it really helps to calm her down, ask her how she would feel and react if her neighbor felt the same way, but instead played Bon Jovi? Or ask if she would be able to calm down just as successfully if she listened to her music with earphones. Questions like that are neutral, but bring up realistic problems and possible resolutions.

Once the discussions begin, never use dismissive or disparaging words about any of the participants or their positions, and do not allow anyone else to do so either. Some examples of these are: “Oh, I will just pay ‘nuisance value’ to settle the case,” or one person saying that someone on the other side is a fraud or a thief, or even calls the other party a “jerk,” “dirtbag” or “slimeball,” etc. If that happens, immediately interrupt and say that such words are counterproductive, off limits and not allowed. And be firm about it, because almost nothing will poison a settlement discussion like comments of this kind.

In more complicated disputes it is frequently helpful to ask each side to brainstorm and come up with one or more proposals that take each side’s interests into account. By engaging them in this process, it frequently brings the parties more to a realistic understanding of the problems, and also brings them closer together.

Several years ago I helped to settle what was probably the first Catholic priest child sexual molestation case in the country by not allowing anyone to discuss money at all. Instead, I asked the plaintiff and his attorneys, who were all Catholics, to adjourn to my jury room and prepare a list of institutional changes that they would suggest be adopted by both the Los Angeles and Orange counties dioceses that would seriously reduce the chances that this scurrilous alleged conduct would ever happen again. The plaintiff and his attorneys did so, and in about an hour emerged with a list of 10 suggestions.

Then I requested the church representatives and their attorneys to go into the jury room and consider and respond to those suggestions. When they emerged in about another hour, not only did they agree to each of the 10 suggestions, they actually added an additional one of their own.

At that point, I suggested a dollar figure to settle the case that was quite a bit less than plaintiff had requested, but more than the church had said it was willing to pay. Soon each side agreed to that number, and the case was settled. This approach enlisted each side to help address the fundamental problem, and helped to give them a vested interest in being a part of its resolution. The plaintiff realized that he could never institute these changes by going to trial, only by settling the case. And the church recognized that it could turn an enormously negative situation into something more positive. In addition, each side also received the gratification of knowing that this positive result was facilitated by their own suggestions.

A big secret tool in dispute resolution is to keep the parties slowly moving closer toward each other. And this progress can be about anything. In the example above, if the complaining neighbors simply state that they also enjoy Beethoven, that can disclose a common bond between them. And the more things people see that they have in common, the more likely they are to agree to a workable resolution of their disputes.

Finally, in my mediation efforts I often tell the parties that I am really in the “dissatisfaction distribution business,” and that is true. You will notice that in this discussion I have only used the word “resolution,” and not the word “solution.”

The reason is that most of the time the only things that have actual solutions are mathematical equations; human problems only have resolutions.

So when you are attempting to work with people and deal with their disputes, make sure they understand that probably nothing will make the situation perfect.

We only can do the best we can in an imperfect world.

But being a peacemaker is a skill that can be practiced and improved. And once it is employed successfully, it can bring to you about as perfect a feeling as you will ever enjoy.



JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of Wearing the Robe – the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at jimpgray@sbcglobal.net or via his website at www.judgejimgray.com .

ARE ATTORNEYS FRIENDS OR FOES? by Judge Jim Gray

ARE ATTORNEYS FRIENDS OR FOES? by Judge Jim Gray

04/20/08

Okay, yes I am a member of the legal profession, and yes I agree that our profession has some problems. But by and large I am proud of my profession, and I think it is time for me to stand up for it more vocally. So please permit me to pass along to you some thoughts as you consider what to think about attorneys and the legal profession in general.


In the first place, virtually all attorneys deal in disputes and other problem areas in our society. Today we litigate many disputes that involve deeply important and emotional issues, like who will have custody of children, who will be awarded sometimes large amounts of money from someone else, whether a candidate will be able to appear on a ballot or not, where the body of a loved one will be buried when the family members do not agree, whether a real estate development project has complied with all applicable laws, or whether a potentially life-saving medicine should be pulled from the shelves of stores. The reputation of those of us in the legal profession is inescapably affected by our being involved in those difficult disputes.


For those who work as plaintiffs’ attorneys in litigation, frequently their clients are not happy with them because plaintiffs often lose their cases. Or they are not satisfied with the eventual award, or, if they are, with the time it took to procure it. With regard to representing defendants in litigation, it is a fact that no one likes to get sued. At the very least it is expensive, aggravating and takes lots of time, and attorneys frequently charge a lot of money for their time and expertise.


So one way or the other, litigation attorneys usually have unsatisfied clients on their hands, and “it is always their attorney’s fault” (or the judge’s). And that does not even begin to discuss what people think about the attorneys on the other side of their cases. So, as I often tell people, we are in the “dissatisfaction distribution business,” and that is almost literally true. And that situation adversely affects our reputation.


Even the large remainder of attorneys who do not get involved in litigation mostly deal with unhappiness in one form or another. Think of those who deal with regulatory agencies and governments at all levels, and tax attorneys. Usually they deal with bad news - it is simply a question of how bad. And when negotiating contracts, leases and other agreements, it is the other side’s attorney that is trying to procure “unfavorable” terms at your expense. So as a natural result, people often equate the attorneys representing the other side with disaffection and even bitterness.


Nevertheless, I believe people innately understand what we are up against, and that there remains an inherent appreciation of the services we render. As an example to support that belief, one evening I was attending yet another fundraising event, and I found myself sitting next to a lady at dinner who found out that I am in the legal profession. Throughout the dinner she harangued me about how the “shyster lawyers” are responsible for all kinds of things that are wrong with our society. It was amazing and quite one-sided. Finally in despair by the time of dessert I tried to change the subject by asking her if she had any children. “Oh yes,” she exclaimed proudly, “and my oldest son is in law school!”


But let me pass on to you some additional points that maybe my dinner friend and even you might not be aware of as you ponder what you think about attorneys in our community. The first point is in response to those who feel that attorneys file too many frivolous personal injury cases. You might not be aware of this, but most of these cases are taken by plaintiffs’ attorneys on a contingency basis, which is to say that the attorneys only take a negotiated percentage of what is eventually recovered. That means that unless the plaintiffs recover an award of some kind, the attorneys receive nothing on the case. As a result, since the attorneys run the risk of working for free, and even paying for costs of the lawsuit out of their own pockets, a sizeable screening process takes place in deciding what cases are filed at all by attorneys.


Another thing that people are almost completely unaware of is that attorneys as a profession routinely donate thousands of hours of “pro bono” work, which is to say that they donate their time to worthy people and causes that otherwise could not afford them. Personally I am not aware of any other profession that comes close to that type of a contribution.


Further, the legal profession polices itself diligently, to the degree that 80 percent of the state bar’s budget is spent on disciplinary inquiries. If any active judge came close to treating people like “Judge Judy” does, or any attorney were to act as is portrayed in many movies or television shows, they would soon lose their licenses to practice law. And rightfully so.


Attorneys at least in California are also required to specify in a written and signed retainer agreement what the relationships are between them and their clients before they can represent those clients in almost any litigation. And before they can bring an action for unpaid fees, the attorneys must offer neutral arbitration to their clients or former clients.


In addition, please consider the following. In my view, there are really only two ways that we can maximize the safety of products in the marketplace and justice and the realization of our expectations in our relationships with each other. One of them is through our civil justice system, with all of its imperfections. But the other is to have even greater governmental regulation of everything we do. And no one I know wants the government to be involved with even more regulation. So maybe we should appreciate what we have a little bit more, along with continuing to use our best efforts to improve the system further.


So are attorneys your friends, or your foes? In my view, the more people are aware of the facts, the more they will understand that the legal profession is a basic, valuable and necessary part of dispute avoidance, dispute resolution and securing safety and peace in the land. As such, it should be genuinely respected for the contributions it makes for us all.

James P. Gray is a Judge of the Superior Court in California, the author of Why Our Drug Laws Have Failed and What We Can Do About It - A Judicial Indictment of the War on Drugs (Temple University Press, 2001) and Wearing The Robe - The Art And Responsibilities of Judging In Today's Courts, has a blog at http://judgejamesgray.blogspot.com/. http://www.judgejimgray.com, and can be contacted at www.judgejimgray.com.