Winning cases isn’t the same as solving problems

If, as James D. Crosby states, "In most cases, a tough call has to be made between right and wrong," my question is, why it is a tough call. ("Taking a difficult dispute to trial," Jan. 10, 2022). That statement reminds me of the following excerpt from my article "The Amplification of Bias in Family Law and Its Impact":

"As Kenneth Cloke, Director of the Center for Dispute Resolution, stated in his book Mediating Dangerously -- The Frontiers of Conflict Resolution, 'Judges have the most intractable bias of all: the bias of believing they are without bias.' Pamela M. Casey, Roger K. Warren, Fred L. Cheesman, and Jennifer K. Elek and others have confirmed Cloke's assessment. They have found that most, if not all, judges sincerely believe that their decisions are made based exclusively on the facts and the law and that their decisions are fair and objective. This is incredibly important because the first step required for a person to reduce or otherwise keep his or her biases in check is admission that those biases exist.

"Those biases, whether explicit or implicit, impact the information judges hear and consider as well as how they interpret that information. John Roberts, the Chief Justice of the U.S. Supreme Court, has said, '[I]t's my job to call balls and strikes, and not to pitch or bat.' In the sense that judges and justices determine the outcome, Chief Justice Roberts is correct in his assessment. Regardless, a judge's role typically involves far more subjectivity than does that of an umpire. And, the more subjectivity involved, the greater the potential for the influence of bias which constrains the information actually heard and considered. This, in turn, leads to impaired critical thinking. It bears mentioning that while many different types of biases exist and may have different causes, the impact of bias is the same, regardless of type."

I agree with many of Crosby's concerns regarding arbitrators and arbitration. That said, the same thing can be said about judges as he said about arbitrators: "[A]rbitrators vary greatly in their acumen and ability to analyze and decide cases." It is unclear why he believes that "the 'split the baby' issue" is somehow limited to or occurs more frequently in arbitration than in court, other than his belief that "mediators seek the path of least resistance" and that "often arbitrators ... also work as mediators." That appears to be a bias against mediators and mediation, even though he states, "in the abstract [to be] a strong believer in mediation." After making such a statement, he explains why mediation is rarely effective, unless the risk of trial is looming over the parties, which he states "is usually the principal motivator of fair settlements." What's fair, considering that fairness is subjective?

The pièce de resistance, which puts everything into perspective is when Crosby says, "And many disputes simply should not be so resolved - [resolved with the parties sitting] down in a room with a skilled mediator before pursuing litigation and, over coffee, calmly, rationally, with the exercise of business judgment and foresight, resolve their disputes."

The following is from "Is It Worth Dying For? How to Make Stress Work for You -- Not Against You" by Dr. Robert S. Eliot and Dennis L. Breo:

"When we use the word 'should,' we are often demanding that reality be different than it is.... And the use of the self-righteous 'should,' while it may fill the speaker with satisfying anger, will probably also result in the listener becoming angry and self-defensive."

The opposite of self-righteousness is self-awareness, which is required to keep one's biases in check, to the extent possible.

Crosby says that clients use lawyers to "fix the problems." He also uses the word "resolve" or "resolved" 11 times in his article. Related thereto, he states, "There are many battles that simply need to be won and many opponents that simply need to be beaten."

In my article, I stated: "Many lawyers and experts seem to have lost sight of the fact that the adversarial process was based upon the presupposition that it is 'the royal road to truth.' Playing to win and attempting to elicit the truth are two very different things."

Winning a case is also not the same as solving problems, even though it does "resolve" the dispute at issue. Moreover, winning is not synonymous with what is right, fair, just, ethical or moral. 

-- Mark Baer

Pasadena