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<xTITLE>Why Mediation is Important</xTITLE>

Why Mediation is Important

by Phyllis Pollack
October 2011

From the blog og Phyllis Pollack

Phyllis  Pollack

The other week I attended the California State Bar Conference. In an early Sunday morning session, I had the privilege of listening to Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine, School of Law and nationally acclaimed expert on constitutional law, discuss recent developments in constitutional law. More specifically, he analyzed the 82 cases decided by the U.S. Supreme Court in its 2010-2011 term by themes.

One theme he discussed was the Court’s tendency to close the courthouse doors to litigants. In support of his thesis, Dean Chemerinsky pointed to several decisions. First, he cited AT&T Mobility, LLC v. Concepcion, 131 S. Ct. 1740, 179 L.Ed.2d 742 (2011) in which the Court held that the Federal Arbitration Act pre-empted a California Supreme Court decision holding that a provision prohibiting class action arbitration in AT&T’s agreement with its customers was unconscionable and thus unenforceable. That is, in the Court’s view, AT&T could prohibit class action arbitration thereby forcing each customer to arbitrate his own individual claim, which in plaintiff’s (that is, Vincent Concepcion) case equaled approximately $30.22.

The second case referenced was Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 180 L.Ed.2d 374 (June 20, 2011) in which the Court held that an employment discrimination class involving millions of female Wal-Mart employees throughout the United States could not be certified as a class as the members of the alleged class did not meet the threshold requirement of commonality, typicality and adequacy required in Federal Rule of Civil Procedure 23(a). Thus, each plaintiff was forced to sue Wal-Mart individually for back pay, a very expensive and time consuming proposition.

The third example was PLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 180 L.Ed.2d 580 (June 23 2011), rehearing denied, ___S. Ct.___, 2011 WL 3557247 (August 15, 2011) in which the Court held that manufacturers of generic prescription drugs could not be sued on a failure to warn theory. The Court ruled that such suits are prohibited by a federal law allowing generic drugs to be sold if they are equivalent to drugs approved by the FDA and carry the same warning label approved by the FDA for the non-generic drug. Thus, the plaintiff who is harmed by a generic drug has no recourse; she cannot sue for any injuries/death suffered due to a lack of warning by the manufacturer.

The fourth example was Cullen v. Pinholster, 131 S. Ct. 1388, 179 L.Ed.2d 557 (2011),rehearing denied, 131 S. Ct. 2951 (May 31, 2011) in which the Supreme Court held that any new evidence demonstrating the ineffective assistance of counsel could not be used or introduced in a habeas corpus proceeding questioning a state court conviction even though the statute in question provides for an ‘evidentiary” hearing – 28 U.S.C.§2254(d)(1),(e)(2). Rather, the Court ruled that the defendant was limited to the evidence presented in the original state trial court to prove that his counsel did not effectively assist him.

Another example was Arizona Christian School Tuition Organization v. Winn, 131 S. Ct. 1436, 179 L.Ed.2d 523 (2011) in which the Court held that taxpayers lacked standing and so could not sue to challenge a state program providing tax credits for tuition for parochial schools. Plaintiffs alleged that the tax credit program violated the First Amendment’s Establishment Clause. (“Congress shall make no law respecting the establishment of religion. . . .”)

Finally, there was Connick v. Thompson, 131 S. Ct. 1350, 179 L.Ed.2d 417 (2011) in which the Supreme Court stated that the Orleans Parish District Attorney could not be held liable for its failure and/or “deliberate indifference” to turn over exculpatory evidence to the defendant during the eighteen years that Thompson – the criminal defendant – had been convicted, sentenced and was serving time (including 14 years on death row) for a crime he did not commit. His investigator discovered the evidence one month before his execution which discovery led to his convictions being vacated. Had the evidence been turned over to his counsel prior to trial, he would have been exculpated of the crime and never convicted. Consequently, because he failed to prove “deliberate indifference”, the Court held that Thompson had no recourse against the Orleans Parish District Attorney for his wrongful conviction.

In each of these cases, the Court’s ruling either shut the courthouse door completely in the plaintiff’s face or made it so prohibitively expensive, and/or time consuming to go forward that, in practical terms, the door to the courthouse is slammed shut.

Given this predilection of the country’s highest court, it appears that alternative dispute resolution – especially mediation – is now a “must” and no longer simply an “alternative” to many plaintiffs. Contrary to Professor Frank E.A. Sander’s (Harvard Law School) concept of the multi-door courthouse first articulated in April 1976, it appears that the courthouse can no longer be viewed as an alternative dispute resolution center offering an array of options by which to resolve disputes. Rather, the “alternative” has become the only door.

. . . .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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