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Rights V. Resolution

by Phyllis Pollack
April 2009

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

       Last week, I was in New York attending the 11th Annual Conference of the American Bar Association’s Section of Dispute Resolution. One of the highlights was the award of the ABA’s D’Alemberte-Raven Award to Magistrate Judge Wayne Brazil of the Northern District of California. This is a most prestigious award.

       In his acceptance speech, Judge Brazil admonished his audience of ADR neutrals that we must be cognizant and respectiful of  the dichotomy between rights versus resolution. Every litigant is entitled to the full panoply of rights accorded to her by our judicial and legal system. These rights should neither be trampled upon nor destroyed at the expense of seeking a resolution through alternative dispute resolution. Thus, while settlement of any dispute is always a goal of any neutral, it should  NOT be the SOLE goal and so overriding that it trumps the party’s right to a trial by a jury of her peers, or by the court or of any of the other rights afforded through our system of justice. Reaching a settlement at any cost cannot be the neutral’s motto. While the courthouse may be “multi-door”  (to quote Professor Frank Sanders), we cannot forget that one of those doors leads to the trial courtroom.

       I walked away from this address and the conference wondering where exactly is the line between rights and resolution. At what point does a neutral cross the line in advocating settlement over trial? At what point is pushing a settlement no longer appropriate or is too much or so over the line that it impliedly constitutes the denial of all the rights accorded to a party by the U.S. Constitution?

       I am a long way from finding the answer but I think I came a bit closer through a mediation I had the other day.

       It was a “lemon law” case. The plaintiff complained of a defect in her automobile but the defect allegedly first occurred after the warranty expired, meaning that theoretically, (or unless some exception applied) the vehicle did not qualify as a “lemon” under either federal or California law. To make matters worse, the defendant was (and is) a U.S. automaker and thus in a world of “hurt.” Because of its financial situation, even on a “good” case, it was unable to offer much in the way of settlement because it did not have it to offer.

       So. . . here we were, a plaintiff with potentially no case and a defendant unable to even offer nuisance value due to its own financial crisis.

       When defendant offered what little pittance it had, plaintiff was insulted and took great umbrage. I, as the mediator, tried to explain the realities of the situation - that plaintiff probably did not have a claim under the “lemon law” and that defendant’s economic condition and ability to settle may very well erode into nothingness in the coming weeks. Quite possibly, defendant’s economic situation will only worsen with the passage of time.

       In response, plaintiff said she did not care: it was “the principle”, and she wanted to go before the court and be heard. She wanted the court to say that what the manufacturer and dealerships had done to her was neither just nor fair.

      Is this where that “magical” line exists – between rights and resolution? Should plaintiff be entitled to go to court and have the court determine for her and adjudicate the “justness” or “fairness” of the situation even though the cost of the litigation will far exceed any damages plaintiff may ever collect either against the manufacturer or the dealerships? I do not know.

       We went round and around for another hour about the practicalities of the situation (i.e., cost-benefit analysis) versus plaintiff’s right to go to court. In the end, plaintiff would not agree to settle: she wanted to be heard in court.

      Did I, as a mediator, do my job or not do my job? Is my goal to have the parties obtain resolution at any cost? Or simply to open their eyes to the consequences of any decision they may make?  Am I there simply to “facilitate” the discussion, making sure all of the issues, interests and needs are out on the table, or am I there to assist them to reach settlement? At what costs? Rights? Or resolution?

       I do not know. When I do, I will do a sequel to this blog. But, I do know that this mediation led me to a deeper understanding of what Judge Brazil meant in describing the tension between rights and resolution.

       . . . Just something to think about.


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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