Prepared Remarks

RAYMOND C. FISHER

ASSOCIATE ATTORNEY GENERAL

UNITED STATES DEPARTMENT OF JUSTICE

LUNCHEON ADDRESS

FORBES ADR SUPERCONFERENCE, NEW YORK, N.Y.

OCTOBER 9, 1998

Thank you, Jim Henry, for that kind introduction. I am very pleased to be here with Judge Mikva today, and to give you an insight into the current activities of the federal government to promote greater use of dispute resolution.

In my position as the Associate Attorney General, I have the great honor of working with Attorney General Janet Reno. She truly believes that if we adopt a less adversarial approach to conflict, and use problem solving techniques for resolving disputes, our courts, our federal agencies, our schools, and our communities can be significantly enhanced. I share her commitment to dispute resolution. Today, I am pleased to report that we have begun an unprecedented, comprehensive campaign that promotes the use of dispute resolution in many aspects of our society. Let me begin with litigation.

As ____ noted when introducing me, I've spent most of my adult life as a business litigator in private practice in Los Angeles. I've served as counsel to a number of large corporations, organizations and groups, advising them on how to avoid disputes, and on how to resolve -- or fight --those disputes that could not be avoided. For some time, it has been clear to me that in many cases, the customary, formal ways of conventional litigation have less and less utility in a society that is increasingly complex, competitive, and expensive.

On many occasions, it is neither cost-effective nor substantively advantageous to proceed by way of lawyers making arguments, engaging in a blitzkrieg of discovery and motions, and then waiting for and appealing decisions from administrative and judicial bodies. Clients want to remain in control of their disputes, and as Judge Mikva pointed out, you can't control the outcome of a matter once it is presented to a court for resolution. Moreover, when a court decides who wins and who loses, that ruling may not resolve the underlying problems that caused the suit to be filed in the first place. Thus, this movement is growing, not out of the benevolent altruism of the participants, but rather out of the recognition that in many circumstances, there are better ways to resolve disputes.

At the Department of Justice, we don't bill our clients for representing them. Nevertheless, we, too, must be concerned about the costs of litigation. As the Associate Attorney General, I am something akin to a managing partner, supervising the civil litigation in the Antitrust, Tax, Civil, Civil Rights and Environment & Natural Resources Divisions. For the government, those costs include not only staff resources but also the consequences of delay and uncertainty when important federal programs are tied up in court. The United States is the most frequent user of the federal courts; we are involved in some 20 per cent of the civil docket, nationwide. Therefore, by settling those matters that do not require judicial attention, the government also contributes to enhanced access to justice for all parties who truly need the federal courts to resolve their disputes.

For these reasons, the Attorney General began a program three years ago to promote ADR within the Department of Justice. She appointed Peter Steenland, an experienced appellate litigator to the position of Senior Counsel for ADR. At the time we began, our lawyers were using ADR in fewer than 400 cases nationwide. The Attorney General directed that all of our attorneys with a civil practice should be trained in negotiating skills and in skills that would make them effective advocates in mediation and other ADR processes. She set aside a fund of one million dollars solely for the purpose of hiring mediators and other ADR providers for government cases. Now, when our attorneys receive their annual performance evaluation, they are graded not only on their work in legal research, written and oral advocacy, but also on how well they negotiate, and whether they make appropriate use of ADR in their cases.

During the past three years, we've trained a lot of lawyers, in Washington and in United States Attorney's Offices around the country. We've already spent the one million dollars for neutrals, and are in the process of replenishing that fund. Our lawyers are using ADR to resolve tort claims, contract disputes, environmental matters, Title VII suits, and enforcement issues under the civil rights laws. In many cases, our lawyers are reporting early settlements in cases that otherwise would have required extensive discovery, only to settle eventually on the court house steps. In other cases, we are resolving matters that would have gone to trial, thereby freeing our lawyers to litigate those cases that cannot or should not settle. In the three years that our program has been operating, we have quadrupled the number of cases in ADR to more than 1,600.

But we have much work that still must be done. The Department of Justice is a very large organization. Not all of our attorneys yet understand the benefits of ADR. Some can't see the role of ADR in high dollar litigation, or in cases where the government has strong and powerful arguments, because they fear a mediator will "split the baby." Some of those lawyers are in Washington, and others are in the field. We will continue to work with them as we expand our program. We will continue to encourage creative use of ADR, and we will promote the Attorney General's vision of lawyers as problem solvers.

In this regard, we ask for your assistance. If you have a dispute involving the United States, I urge you to consider whether ADR would be appropriate. Suggest it to government counsel. Remind them of the Attorney General's policy on ADR and her commitment to these processes. Work with them, and with us, as we continue to change the culture of the world's largest litigating law firm. In many parts of the nation, ADR is becoming accepted as an integral part of litigation. Where ADR is already part of the legal environment, you are more likely to get a favorable response. In those areas where ADR is still largely unused, work with your courts and local bar associations to develop ADR programs.

Of course, not every case is appropriate for ADR. For example, there are circumstances when injunctive relief is urgently needed and cannot be resolved through a consent decree process. Also, the government has unique concerns not shared by the private sector. There are times when we need the precedential guidance of a court opinion to interpret a statute or regulation so that everyone knows what the law means. On other occasions, we may conclude that the other side is not negotiating in good faith, or that its case is altogether without merit, In these circumstances, ADR is not appropriate.

Of course, the Justice Department is but one small part of the overall federal government. If we are going to be truly successful in promoting dispute resolution, we have to get other federal departments and agencies involved. I am pleased to report that a number of agencies already have made a significant commitment to dispute resolution. The Secretary of the Air Force has a policy of using ADR "to the maximum extent practicable" in any civil matter involving that agency. It is in the process of appointing ADR advocates at Air Force facilities around the world so that workplace, contract, environmental and other disputes can be resolved quickly and efficiently. The Postal Service, which has a workforce in excess of 800,000 employees, recently decided to establish a free mediation program to resolve Title VII claims by employees at postal facilities around the nation. Other agencies that have made progress with ADR include EPA, the FDIC, GSA and the Navy, among others.
And, at the Department of Justice, we have used mediation on more than 400 occasions in responding to claims of discrimination under the Americans With Disabilities Act.

To assist Cabinet Departments and Executive Branch agencies in making a similar commitment to ADR, the President asked the Attorney General on May 1 of this year to chair an Inter Agency Working Group to promote dispute resolution throughout the Executive Branch. Senior federal officials from more than 60 federal agencies met last month, to hear the Attorney General and the Deputy Director of the Office of Management and Budget describe to them how ADR can assist them in their agencies. We expect every federal agency to develop at least one new ADR program in the next year.

This, too, is an ambitious undertaking. It will require senior government officials to make ADR a priority in their organizations. It will require them to set aside money for training, and for neutrals. But with the leadership and the commitment of the Attorney General, the President's directive will be implemented.

I've spoken several times today of the need for training, as an integral part of any program to promote greater use of ADR. This is true for ADR programs in either the public or the private sector. Training is so essential because historically these matters have not been adequately addressed during law school. Instead, most of us were taught to take a problem, distill it down to its essence, identify the legal issues and then litigate the matter in an "adversarial system" -- someone would win, someone would lose. We didn't learn how to negotiate, we were not taught to differentiate between legal positions and client interests, and no one thought we could add value to conflict resolution by "going outside the box" and becoming creative problem solvers. For these reasons, we have found it necessary to supplement the classic legal education with on-the-job training in these skills. But if the goals of this conference are to be imbued into our legal culture, we need to insure that legal education includes the problem solving approach to conflict that you have been talking about for the past day and a half.

As the nation's largest law firm, this is a matter of great interest to the Department of Justice. We ask you to join the Attorney General and me in working to see that new lawyers have been exposed to problem solving in the course of their legal education. Many law schools now offer courses and clinics in negotiations and in dispute resolution. In some circles, these "skills courses" are still viewed as less essential to legal education than the traditional casebook courses we all took. But I suggest that we look to law schools such as Stanford and Georgetown, to name only two. There, the deans and the faculties are working toward a vision of the lawyer in the 21^st Century in a way that is wholly consistent with the presentations at this Conference. At these schools and a growing number of others, law students now take courses that will help them to assess the value of a case, to conduct risk analysis, and to distinguish the real interests and needs of a client from the legal position that is being asserted. These new lawyers can engage in negotiations that can create value and minimize conflict. Such skills can benefit a client in transactional matters as well as in disputes.

As leaders of the bar and as alumni of law schools all over the county, we should work to encourage this type of legal education, for it would make conferences such as this unnecessary in the future. In addition, our law firms and companies are the consumers of legal education. In that role, we should be hiring new attorneys who have included in their legal education these problem solving courses and skills training. If we truly seek to advance the goals espoused by this conference, our decisions in the hiring marketplace will create a demand at the law schools for the type of courses I have described. By supplementing the legal education curriculum in this way, we can make lawyers better instruments of society and more responsive to the needs of their clients.

Conflict takes many forms, and arises in all sorts of contexts. For businesses, conflict may simply be an additional cost to bear, another irritant or obstacle on the road to commercial success. But for others in our society, conflict can have far greater consequences.

I know that the theme of this Conference is making greater use of ADR in business and commercial enterprises. I agree that is a worthy and very necessary goal to set. At the same time, we must look beyond our law firms and corporations, and examine the communities in which we are located to see if we are doing enough to improve the environment in which our business is conducted.

One of the most exciting programs undertaken by the Department of Justice involves conflict prevention training in our schools. Children who might otherwise resort to fists or knives to resolve conflict are being trained in peer mediation techniques to avoid violence. Teachers teach conflict prevention to students who then show other students how to resolve the everyday disputes that arise on the playground and in the school yard. The skills these kids are learning to resolve their disputes with each other will help them throughout their lives. When the Attorney General travels, she often meets with groups of teen age mediators. The stories they tell about their accomplishments are truly inspiring. That is why, with the participation of the Department of Education, we published a book for teachers and students on conflict resolution programs.

Because these programs can do so much by instilling life-long skills in our children, the Department of Justice is working to insure that conflict resolution is established as an essential element in the training of our teachers. Earlier this week, I learned that the State of Iowa adopted a law requiring every teacher in that state to be trained in conflict resolution. We would like to see more of that.

We'd also like to see more community mediation centers. Not everyone in our society can afford an attorney when they have a dispute. For many disputes, attorneys might only make matters worse. At present, we estimate that there are some 400 community mediation centers around the country, with trained experts helping citizens resolve landlord-tenant disputes, small claims issues, matters involving domestic issues and similar, familiar controversies.

The goal of these programs is to make our society less adversarial, to help people learn to listen to each other, and to engage in creative problem solving, rather than running off to a judge to find out who's right and who's wrong. To help make our communities more peaceable, we have created at the Department of Justice a Community Dispute Resolution position for a professional who coordinate and promote all of our non-litigation ADR activities. Again, we have much to do in this field as well, but with hard work and the Attorney General's leadership, I know we can succeed.

If there is another ADR Superconference next year, it would be instructive to see how much progress we have made in all of these areas. Let me pose some questions for next year. Will our program at the Department of Justice continue to grow, and will the federal agencies meet the goals set by the President and the Attorney General? Will we, in the public sector, do a better job of promoting and establishing ADR programs than those of you who come from the private sector? Will you give us your assistance to promote peer mediation in schools? Can your company or law firm fund a community mediation center in your neighborhood? Perhaps, we could measure the achievements in each of these fields at next year's conference. In such a contest, there can be no loser. Every time a new dispute resolution program is established and begins to provide a peaceable, efficient way of avoiding litigation and resolving controversy, we all benefit as a result.

Thank you very much.