SPEECH BY RAYMOND C. FISHER

CPR INSTITUTE FOR DISPUTE RESOLUTION

NEW YORK CITY, JANUARY 29, 1999

PROBLEM SOLVING IN THE

TWENTY-FIRST CENTURY

Jim, thank you very much for that kind and generous introduction. I am pleased to be here, in the company of so many distinguished individuals committed to the promotion of "Appropriate Dispute Resolution"

Three years ago, you honored the Department of Justice by inviting our then-newly appointed Senior Counsel for ADR, Peter Steenland, to give the Friday luncheon address at that year's Winter Meeting. In helping me to prepare for this event, he described what it was like a few years ago as the Department began its ADR program. Our former Solicitor General and good friend Walter Dellinger used to say that he worked at the "Department of Litigation." So you can understand the hurdles we faced back then. Pete said that when he took this position, he had hoped that the Attorney General would provide a spark to get the ADR program going, but soon after he took the position, he realized that the Attorney General was actually providing a blowtorch, rather than a spark.

Congratulations are in order to all of you, and to this organization on its 20^th anniversary. You have been a strong and effective advocate for dispute resolution in the legal and corporate communities. CPR's education, training and counseling programs are well respected and effective. CPR's Corporate and Law Firm Policy Statements, along with your annual awards program for ADR excellence, have done much to instill the use of ADR as an enduring technique for resolving legal disputes throughout the country. I especially like your Panels of Distinguished Neutrals, people who are available to assist parties in the resolution of their disputes. Perhaps I am fond of your Panels because you had the great foresight and wisdom to include me on your list of Distinguished Neutrals in Southern California. (At least I was neutral!) Over the past twenty years, CPR has made many valuable contributions to dispute resolution. Thank you for all that you have done.

It is also appropriate to recognize this organization for its continued, ongoing efforts to promote the use of ADR in the future. By developing new applications for the use of ADR in a wide variety of fields, you are making the benefits of dispute resolution available to many industries and practice areas where it is sorely needed. In this regard, I want to take just a moment and commend you for your initiative with respect to the so-called Y2K concern. I commend CPR for identifying this issue as appropriate for ADR consideration, and for stimulating a discussion over how to handle potential disputes over Y2K matters with the least cost, delay, animosity, and disruption.

As Jim 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, but you can't control the outcome of a matter once it is presented to a court for resolution. Moreover, when a court or jury 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.

We -- everyone in this room -- know all this. That's why we're here. And because the Attorney General knows that ADR works well when used in appropriate circumstances, we are continuing to grow our program at the Department of Justice. Now I know that some of you have suggested that ADR be used in cases involving the government and were turned away by our lawyers. I want to remind you that the Department of Justice is a very large place, with many lawyers. Not all of them have gotten our message. We are continuing to promote ADR in the Department, and to increase our use of mediation and other dispute resolution processes. But, if you have a case where you think ADR should be used, and you're not getting anywhere with our lawyer, please give Pete Steenland, our Senior Counsel for ADR a call, and we'll take a look at it. Not every case is suitable for ADR. Sometimes, we litigate because a precedent is important, and on other occasions, we may simply need a ruling by the court. If you are in this situation, call us.

We are also hard at work in our Interagency ADR Task Force, which the Attorney General chairs. This Presidentially-established group is charged with promoting ADR throughout the federal government. These efforts require continued attention and sustained emphasis, because there are still a lot of people who have not yet gotten the message. In both the public and the private sectors, we still have a long way to go before declaring our efforts a complete success.

As you know from yesterday discussions, there is much to learn from the Cornell/PERC report on the use of ADR by American business. Only 5.6% of the 606 participants, chosen from the Fortune List of 1,000 corporations reported that they used mediation to resolve disputes "very often." Only 13.1% percent reported using mediation "frequently." Another 43.2% used mediation "occasionally", and 29.9% said they rarely used this technique for the consensual resolution of disputes. So, I don't think that any of us can rest on our laurels and congratulate ourselves for a job well done. There's still a lot of work to do.

And so, you and I must continue to promote training, and we must continue to encourage change. Day by day, dispute by dispute, person by person, we must be relentless in sharing with others what we know about ADR and the great benefits that can result from using dispute resolution in a wide array of contexts.

Now, once again the Attorney General has a better idea. According to the Attorney General, our job would be so much easier if the future generations of lawyers received, as an integral part of their legal education, exposure to problem solving theory and practice in law school. In other words, the Attorney General wants all of us to work together with our friends and associates at law school faculties across the country, to incorporate problem solving into the education that every budding lawyer will receive. Yesterday, you recognized Professor Leonard Riskin and his efforts to do exactly that.

At the annual conference of the American Association of Law Schools earlier this month, the Attorney General commended those schools that already have negotiation clinics and ADR programs. We all recognize that this is an important step. But not all students take these courses, and the benefits that flow from these academic experiences are not widespread throughout the graduating classes.

Let me define what I mean by problem solving in a law school context. It is an approach to legal education that emphasizes the ability of a lawyer to resolve a dispute without necessarily resorting to litigation. Problem solving respects the lawyers' role as a litigator, but emphasizes that a lawyer also serves his or her client by acting as a counselor, a decision maker and a planner. Problem solving demands an examination of the true needs and interests of all those involved in a dispute, rather than looking only to the legal positions that are espoused by parties in legal pleadings. Problem solving places great emphasis on creative thinking, and builds on traditional legal education through three steps.

First, a problem solving approach to legal education would take the core curriculum of contracts, property, civil procedure, and other courses, and add an academic ingredient in addition to the traditional casebook method of legal education. Most of us were educated through the study of appellate decisions that presented important principles of law. In a problem solving approach, students would not only learn the holding of these cases, but they would also diagnose the actual disputes in which these legal holdings were rendered. They would learn why these disputes arose; they would identify underlying interests of all the parties, and working with their professors, they would construct solutions to these problems that do not involve a litigated outcome. Problem solving, then, involves a deeper inquiry into selected cases in the context of traditional legal education.

Such learning can also be achieved by using "transactional case studies", adapted from a teaching method long used by business schools. These transactional case studies are a valuable vehicle for teaching problem solving skills, for they present problems to a student as a client would present them to a lawyer. In this manner, the law student would be required to identify, analyze, and propose solutions that could resolve the dispute in a consensual manner.

Second, problem solving also requires the use of interdisciplinary insights, and exposure to academic disciplines beyond traditional jurisprudence. I'm especially proud of the fact that Dean Paul Brest at Stanford Law School, my alma mater, is in the forefront of this effort. He is a strong proponent of lawyers needing to understand such things as decision theory, risk analysis, and economics. This interdisciplinary approach also can give law students exposure to the social sciences, so that they can better understand the intuitive components of human behavior and thereby recognize that non-legal issues often dominate the legal disputes our clients present us. Your program, just before lunch, touched on this issue, also.

The third component of problem solving involves a greater emphasis on negotiation, dispute resolution, and collaborative working relationships. Academic courses in negotiation will give law students exposure to the obstacles that impede consensual resolution, and the means for overcoming them. Dispute resolution courses expose students to mediation and other ADR processes. Such courses and clinics can teach students how to resolve problems before they deteriorate into contentious litigation that can devastate otherwise healthy, ongoing relationships. By learning why dispute resolution works, and how to use it, law students will understand why and how adversarial conduct can be both inefficient and harmful to their clients' interests.

These skills are essential for future generations of lawyers, because the old way of resolving disputes through traditional civil litigation will not be responsive to the needs of many clients. Let me quote the Attorney General, in her recent speech on this subject: " In an age when much of a law firm's business involves international transactions, new mechanisms need to be established to deal with disputes so that we can resolve conflict in a multi cultural, international environment. With business moving at the speed of the Internet, the prospect of having a dispute resolved in a civil action several years after the suit is filed is simply unacceptable." Thus, law firms as well as government agencies will have a need for young lawyers who can practice problem solving on behalf of their clients.

I encourage you to join the Attorney General and the Department of Justice in this effort to improve law school education. When you are recruiting, let the schools and the applicants know of your interest in hiring graduates who have been exposed to this kind of expanded legal education. If we create a market for hiring problem solving lawyers, the law schools will respond by providing these courses.

As distinguished members of respected firms and well-known corporations, you surely have colleagues at law schools who are not part of the ADR movement. I encourage you to speak with them about the Attorney General's message, and about the need to take the best system of legal education anyone has ever seen, and make it even better.

Problem solving is very helpful in other contexts, also. At the Manhattan Community Court, which I visited earlier this morning, I saw lawyers and judges acting in nontraditional ways, dealing with criminal conduct that threatens the well-being of a neighborhood or community. These remarkable people are bringing problem solving skills to an area of the law where new vision and insight is sorely needed.

We are also encouraging schools to adopt programs that will train both teachers and students in peer mediation, so that disputes can be settled on the playground in a peaceful rather than a violent manner. Indeed, I recently met with California educators who told me about innovative peer mediation programs some are experimenting with as ways of dealing with problems of school violence. Here, too, is an area where we as lawyers can help our young people see that dispute resolution can be kinder and gentler than the TV image of winners and losers -- with aggressive lawyers as the hired guns. In short, fostering alternative, nonlitigious ways to solve problems and resolve disputes can have a positive impact on our society at large, particularly for our children.

We've got a great deal of work to do. We have to address immediate issues such as Y2K and other matters. But we also must take steps to insure that dispute resolution becomes an enduring and integral aspect of the legal practice in the 21^st Century. By promoting problem solving in all that we do, we can improve the legal profession and we can also advance the goals espoused by this organization.

Thank you very much.