OH YEAH, THERE WAS THAT OTHER ONE . . . .
From the Los Angeles Times, regarding the man who will face Governor Jerry Brown in a runoff:
FOR THE RECORD
An earlier version of this post referred to Neel Kashkari as the first California Republican gubernatorial nominee in modern times who is not a white, Christian male. In 2010, the Republican nominee was Meg Whitman.
HOW THE LEGAL SYSTEM FAILED SERGE ALEYNIKOV
In the latest issue of Vanity Fair financial writer Michael Lewis tells the fascinating story of Serge Aleynikov, a programmer who copied a small bit of computer code when changing jobs. For this he was convicted in federal court and sentenced to eight years in prison.
Serge had left Goldman Sachs, which frowned upon having its “propriety material” taken. (Whether or not the code was proprietary is itself somewhat questionable, since Goldman claims all open source code as its own once its programmers have modified it, even if the improvements aren’t specific to the company.)
This case is a stark reminder that not every dispute needs to end up in the legal system, which was ill-equipped to deal with the issues it presented. The FBI agent who interviewed Serge parroted computer terms he didn’t comprehend. That’s not surprising – Serge’s specialty, high-frequency trading, is highly complex and esoteric. At trial, the jury was hard-pressed to understand, let alone pass judgment on, the testimony. Jury members were mostly high school graduates, none with programming experience. Even the government’s expert witness couldn’t say whether the disputed code had any value.
Lewis convened a group of experts knowledgeable about programming, high-frequency trading, and/or Goldman Sachs. They questioned Serge at length and concluded that the code included none of Goldman’s trade secrets and gave no benefit to his new employer.
So what if, instead of calling in the feds, Goldman had sat down with Serge to learn exactly what he had taken and his purpose in doing so. (Yes, in an alternate universe. Suspend disbelief.) I picture a group that would include an independent programming expert, as well as someone familiar with high-frequency trading. Counsel for both sides. And a prosecutor with some fluency with programming and Wall Street. Let them question Serge as Lewis’ “jury” did, and then decide whether to throw the book at him.
My instincts tell me that a fair-minded prosecutor would recognize that no crime was committed – at least nothing worth 8 years in slammer. The parties could come to agreement, including things like the return of Goldman’s intellectual property; Serge’s promise to never use a scrap of the code; perhaps a period where Serge would be monitored by an independent party. Would that not have better met everyone’s needs than a federal trial?
Fortunately for Serge, the Court of Appeals apparently understood the issues. Immediately after oral argument, it ordered him released from prison. But his victory was short-lived. A few months later, he was re-arrested for the same actions, this time on state charges. His attorney turned down a plea offer of time served. The charges are pending.
MEDIATION COMES OF AGE IN LOS ANGELES (PART 2)
Now that budget cuts have ended court-annexed mediation—just as they led to its birth nearly twenty years ago—what now? What does the landscape look like from here on?
In some respects we’ve returned to 1994. Courtrooms have been closed, court staff laid off. All personal injury cases county-wide will be assigned to just two judges. Access to the courts for motions and other conferences is limited. Cases won’t come to trial for many years.
There’s at least one new wrinkle: Trials may not be heard in the courthouse where the case was filed. This adds another level of risk to the decision to proceed: Will the jury pool tend to favor the plaintiff or be one that is likely to side with the defense? Unlike the past, no one will know until virtually the last minute.
Here’s another difference between now and twenty years ago: We now have a large, vibrant, experienced, and well-trained ADR community. Numbering well over 1,000 individuals, many are attorneys, including retired judges. Non-lawyer mediators often have specialized expertise in real estate, entertainment, business, medicine, or construction, to just name a few. The Southern California Mediation Association (SCMA) is a leading membership organization, enriched by its close ties to Pepperdine’s Strauss Institute for Dispute Resolution, generally regarded as the best ADR training program in the country.
Also unlike two decades ago, the legal community understands the mediation process and recognizes its value to their clients. And now the legal community needs mediators more than ever.
So what does this all mean?
Several groups have stepped up to fill the void left by the demise of the court ADR panels. The newly-created Mediator Registry offers listings of experienced neutrals, some of whom have agreed to accept cases at a reduced rate. SCMA will soon launch a Select-A-Mediator Directory, making detailed information about its members available to the community. Others, I am confident, will follow suit to provide ways for lawyers and others to find the right mediator for their situation.
As for the mediators ourselves, I would divide the available work into three distinct types:
First are what I’ll call the Caviar cases. These present complex legal issues, with sophisticated parties and counsel, extensive discovery, and lots of money at stake. Such cases will continue to be mediated (and/or arbitrated) by organizations like Judicate West and ADR Services, whose neutrals are retired judges and highly-experienced litigators. Where prestige matters, and where parties are willing and able to spend many hours and many thousands of dollars on mediation, these are the places to go.
At the other end of the spectrum are the Community cases. These include issues like small claims and civil harassment, where emotions often are high, dollars relatively low, and interpersonal issues often paramount. Neutrals experienced in these types of cases remain available at little or no cost through such organizations as the Center for Civic Mediation (LACBA) and the Los Angeles City Attorney.
The third, and by far largest, piece are the Core cases—the vast middle. These were the cases that typically were assigned through the court panels. This is where there remains a huge need, with no “automatic” mechanism to fill it. Mediators (myself included) operating in the core now need to find the work; it no longer will come to us.
We need to demonstrate to the legal community—accustomed to getting our services for free—that the value we provide is well worth the cost. We need to do more marketing, more networking, more educating about what mediation is and what it can do. We need our professional organizations to promote mediation and mediators to the legal and business communities, as well as the public. And we mediators need to support each other, sharing resources and referrals.
There’s yet another piece of the conflict resolution world, one that is vastly larger than the other three put together, yet is rarely discussed. If we imagine all disputes put into a funnel (thank you, Lee Jay Berman), litigated cases are in the narrow “neck” at the bottom; they are but a small portion of the world’s conflicts. Yet many mediators have limited their efforts to that small space.
I was puzzled during my mediation training at what appeared to be the assumption that our careers would consist entirely of litigated cases. While working in labor relations and before being formally trained in mediation, I often used mediation techniques to resolve workplace disputes. We also brought in outside mediators on occasion. So it’s been clear to me that there are opportunities for mediators in many other contexts. Pre-litigation mediation, as well as mediation of issues that are unlikely to lead to litigation, has all the benefits of speediness, cost-effectiveness, maintaining relationships, and self-determination that the mediation community promotes.
The work is out there for those of us who take the initiative to find it—and to demonstrate to a new audience the power of alternative conflict resolution, just as the pioneers did for the legal community nearly twenty years ago.
MEDIATION COMES OF AGE IN LOS ANGELES
Within days, Los Angeles Superior Court will close its ADR (Alternative Dispute Resolution) Department, a victim of drastic budget cuts. For the mediation community, this should be a welcome development.
The court’s mediation program came about around 1994, a time when cases often didn’t get to trial for five years. It was a win-win-win-win proposition: Cases would be resolved early, so the court would reduce a crushing docket. Attorneys would have the certainty of a settlement, rather than risking trial. Clients, who must agree to any mediated settlement, would be satisfied. And mediators—largely unknown at that time—would get experience and exposure. If they performed well on the cases randomly assigned to them, attorneys would hire them privately and their careers would take off.
Mediators were to be paid a small stipend for each case. But a funding crisis made that impossible. Instead, the court asked mediators to work two free hours before being paid. Soon, that became three uncompensated hours, not including preparation time. Within a few years, these terms became enshrined in statute, for all time. (I’m indebted to Los Angeles mediators Lee Jay Berman and Charles Parselle for this history.)
While Los Angeles’ ADR program remained frozen ca. 1998, nearly every other large county in California established its own mediation program, with almost all paying mediators for their time. My own survey of the twenty largest counties showed that only five others require any pro bono service, and three of those for just two hours. Some also pay for a portion of the mediator’s preparation time. So Los Angeles, the state’s pioneer in promoting mediation, treated mediators less favorably than the other counties.
For a time, the Los Angeles program worked as everyone had hoped. Cases were settled, lessening the burden on the courts. Attorneys and litigants appreciated an alternative to protracted and expensive litigation. Many early panel members launched successful mediation careers.
But as the legal community became accustomed to free mediation, they did not want to start paying for it. When the court established a second mediation panel, enabling the parties to choose the mediator from a more experienced roster and pay a below-market rate for the first three hours, it was not widely used. (I have heard, but not verified, that the pay panel was used about 15% of the time at the downtown courthouse, far less at the other courts.)
Over time, the program provided free mediation far beyond the types of cases for which it was intended. My mentor and friend Victoria Pynchon recounts mediating a highly technical, complex commercial case where the plaintiff was seeking $10 million. Pro bono. The drawbacks of the pro bono panel also became clear. Judges would send litigants to mediation, whether or not they wanted it or even were ready for it. Court-imposed deadlines meant that mediation often took place before enough discovery had been completed to make the session meaningful. But attorneys usually participated anyway, even if only to check off a box. At a minimum, they would leave with free discovery and insight into their opponent’s thinking.
So it’s not surprising that in 2005, when mediators asked for changes to the program, their efforts went nowhere. The program was working very well for the court, attorneys, and parties. As for the fourth part of the equation, the mediators, what about us?
Intended as a career-builder for mediators, the pro bono program instead turned into a trap. As new mediators continued to join the court panels, there was always a supply of mediators willing to work for free. Paradoxically, many lawyers thought of pro bono mediators as inexperienced and/or not particularly competent — yet at the same time “good enough” to go back to the panel over and over again. As in any labor market, the presence of low-paid (here, unpaid) workers also depressed the market for those with more experience. So the promise of future paid work became largely illusory.
But I have come to bury the pro bono program, not to trash it. What is next for the Los Angeles legal and mediation community? That’s my next post.
Watch Where You Sit
According to the people who study these sorts of things, the type of chair family members are seated on affects how they handle conflicts. This article is full of other simple ideas that can help all of us resolve our daily conflicts (e.g., who’ll pick up the kids) with less strife.