Thanks to Tulane Law School Professor Alan Childress over at the Legal Profession Blog for alerting us to this item No Bias on Encouraging Settlement about a Rhode Island Supreme Court ruling that a Judge needn't recuse himself for bias if he encourages the parties to settle.
the plaintiff [in that case] argued that the judge's encouragement of settlement talks demonstrated bias; the court strongly disagreed. It is entirely appropriate for a judge to suggest that parties resolve their claims through mediation. . . "No less renowned a figure than Abraham Lincoln recognized the desirability of settlement when possible...it borders on the offensive for a party to claim that a justice should be recused for adhering to this policy [of encouraging settlement]."
As "amusing" as this might first be to lawyers, I don't want to let it pass us by without pausing a moment to consider the possible communication gap between Judges and lawyers -- on the one hand -- and people seeking justice -- our clients -- on the other.
People Seek the Services of Lawyers to Solve a Justice Problem
Having recently earned my LL.M and taught a semester of ADR theory and practice to law students, I can report back from the law school trenches that cynicism about justice is not limited to old dogs like me. By their second year in law school, most aspiring attorneys have narrowed their view of justice/injustice to those wrongs the law will remedy. See Writing on a Piece of Rice in a World of Injustice. More troubling, they've narrowed to a vanishing point their former hopes, if any, to be part of a system that delivers justice.
When I ask defense attorneys in settlement conferences why they think their opponent filed the lawsuit against their client they answer with a single voice: MONEY!
"But why do you think they hired a lawyer," I persist.
"Money," they respond again, as if I'd suddenly lost all reason.
"But why did Mr. X even think of seeking resolution in Court . . . under the law . . . why did he turn to the justice system?"
Losses the Law Will Redress
People suffer losses every day of the week. They lose their luggage in Madrid. They don't get a raise or a year-end bonus. They slice off the tip of their finger while chopping onions for Sunday dinner. If they are lawyers of my generation, they got a 610, instead of a 700 on their LSAT -- thereby losing any hope of attending an Ivy League law school.
The cynical persist. "People have been known to sue for those losses too," they say.
True, but they are among the very very very few. Most people who undertake the considerable effort to find an attorney willing to take their case do so because they believe they have been treated unfairly. They believe themselves to be victims of an injustice.
And attorneys, not clients, are the first ones who monetize injustice for their clients. Still, years after that injustice has been monetized, right before trial when most mediations and settlement conferences take place, the clients continue to long for justice.
A Monetary Solution to a Justice Problem
So we should pause before we give in to the temptation to make light of the client who must have urged his lawyer to recuse the Judge for even suggesting that he not immediately be given access to justice -- a jury trial. A client who likely feared he'd be strong-armed into accepting injustice in a Court suggested mediation.
Our clients are speaking and we are not listening. We are in danger of processing monetary claims rather than helping our clients come to terms with the justice issues they brought to us to resolve.
As a mediator, I can tell you that most clients need to have monetary resolutions framed as "fair" or "just" results. And if that is impossible, they need -- at a minimum -- to have the injustice they are suffering acknowledged by the mediator.
As to those Judges who "encourage" mediation, I suggest that the directive be framed as an attempt to achieve, through settlement, that which it may not be possible to achieve in Court. I would, in all events, assure the people seeking justice who appear before me, that I will be there, ready and able to try their case -- happy to serve their justice needs -- if the mediation I suggest they pursue fails to deliver the fair result they are seeking.