ADR AND THE FEDERAL GOVERNMENT:
NOT SUCH STRANGE BEDFELLOWS AFTER ALL


EARL F. NELSON MEMORIAL LECTURE
UNIVERSITY OF MISSOURI LAW SCHOOL
NOVEMBER 9, 2000

DANIEL MARCUS
ACTING ASSOCIATE ATTORNEY GENERAL

      Good afternoon. My topic today is “ADR and the Federal Government: Not Such Strange Bedfellows After All.” It is a pleasure to discuss this topic at the law school that is the recognized academic leader in this field. As the title of my remarks suggests, many of you might not expect that the government would be the kind of place where ADR would take hold. You think of the Federal Government — even the Justice Department — as a tradition-bound bureaucracy that resists change and new ideas.

      I am here to assure you that your suspicions would be misplaced. Under the leadership of Attorney General Reno, we have made tremendous strides in the last eight years, placing us in a position where I think we can say that the Justice Department and the Federal Government as a whole are at or near the front of the ADR parade, rather than lagging behind.

      Part of the reason for this progress is necessity. The Department of Justice is the nation's most prolific litigator in the federal courts. [One of the responsibilities of the Associate Attorney General is to oversee the Department's civil litigation, in the Civil, Civil Rights, Antitrust, Tax, and Environment Divisions.] The United States or its agencies are parties in fully twenty percent of all federal civil litigation. With a docket like this, we have learned the value of an organized, strategic effort to settle cases. Other government agencies face similar challenges in the administrative arena.

      The government may now even be leading the private sector in this field. One sign of this is that private industry is starting to use ADR programs modeled on those of the Government. The front page of the New York Times business section in September featured an article about the former General Counsel of the U.S. Postal Service and another former Postal Service lawyer who had spearheaded the Postal Service's ADR program for workplace disputes, which produced what the Times called “spectacular” results. A major law firm had recently hired them away from the government to implement similar ADR programs for corporate clients nationwide.

      I'd like to describe to you this afternoon some of the barriers we have had to overcome in this field, some of the successes we have had, and some of the lessons we have learned as we have set forth to change the culture in the government.

      Encouraging the use of ADR in the Justice Department and in the government has not been easy, and we still have a long way to go. The Justice Department in particular has historically had an adversarial culture that has been difficult to overcome. There are a number of reasons for this.

      First, our society has long glorified the warrior, and Justice Department attorneys have followed this pattern. Real litigators, the traditional litany has it, don't settle cases. They try them. While there is a rich tradition celebrating trial lawyers in movies, television and literature, ADR has been largely ignored. Gregory Peck and Calista Flockhart are famous for parts as courtroom lawyers, not mediators. Scott Turow never wrote a book about early neutral evaluation. Lawyers are admired for their role as buccaneers much more than as peacemakers.

      At the Justice Department, this “litigation mentality” shows itself among managers and lawyers alike. One supervisor recently complained that his lawyers were settling too many cases. Others resist the use of ADR by arguing that using it is somehow equivalent to “writing a blank check with taxpayer money.” They seem to distrust their own ability to settle a case judiciously and in the best interest of the government.

      A second problem is that the litigation mentality has been around so long, it has become institutionalized. The belief that trials are better than settlements has infected our programs in a number of ways. For example, the flagship course for decades at the Attorney General's Advocacy Institute has been Trial Advocacy. We fly all our young lawyers to the National Advocacy Center in South Carolina for a two-week residential training course on how to try a case. In addition, we fly in another 25 senior attorneys to be faculty members, hire outside consultants to give presentations, use FBI agents as witnesses, and even bring in five federal judges to preside over mock jury trials. The costs for each two-week course are substantial, and we offer it ten or more times each year.

      In contrast, until quite recently, we had no regular courses in negotiation. Attorney General Reno ordered the first negotiation course to be made a permanent part of our curriculum in 1996. The demand was enormous; we had more than four times as many applicants as spaces. Still, it was only a two and a half day course, without the extensive infrastructure and support given the trial advocacy course. While we continue to offer negotiation training several times each year, the trial course still receives much more attention.

      Even the titles of our staff reflect the litigation mentality. Lawyers in the Civil, Civil Rights, Tax, Antitrust, and Environment Divisions have the official title, “Trial Attorney.” That is the way they are known in our personnel records and on their business cards. This is their title even though they settle far more cases than they try.

      Awards also follow this pattern. We have a number of high-level awards that tend to go to people who have been successful in major trials. One series of awards, the John Marshall Awards, is specifically limited to lawyers who have prevailed in adjudication at the trial or appellate level. These awards carry substantial cash bonuses and are given out by the Attorney General in a formal ceremony in Washington. Clearly they have a real effect on the culture of the Department. We have worked to change this. Recently we added a John Marshall Award for the use of ADR.

      Another barrier to settlement we face is that many young lawyers come to the Justice Department for the very reason that we offer trial experience they cannot get elsewhere. Large firm practice, while lucrative, rarely offers young lawyers the opportunities to try cases that are available at the Justice Department. While negotiation experience may be more valuable in the long run, because more cases are negotiated than tried, young lawyers may feel pressure to get trial experience now, while they are at the Department.

      Of course, some of the cases we bring on behalf of the United States involve principles that we cannot compromise, and thus settlement is not possible. When fundamental rights have been violated, we have a duty to ensure that victims receive full compensation for their harms. For private sector lawyers, bottom line business decisions may lead to the settlement of a case because the costs of trying it would be prohibitive. In contrast, when the Justice Department is a plaintiff, we are pledged to fight for some principles despite the cost.

      By the same token, some cases where we are a defendant are also harder for us to settle. While a private company can afford to pay a nominal amount to resolve frivolous litigation in order to get on with its business, this is more difficult for the government. The risk of copycat litigation is much greater for us. If the public learns that the government will pay to settle a frivolous suit, we will quickly be flooded with thousands more cases just like it. Thus we must litigate some claims that the private sector can avoid. And where a lawsuit challenges the lawfulness of government action, settlement is often out of the question. In tax litigation, a private party may be willing to compromise a monetary claim where the government may be reluctant to do so, even on a reasonable basis from a risk-assessment standpoint, because of the need to establish a precedent for other cases.

      Despite all of these obstacles, we have made remarkable progress in changing the culture of the Department of Justice and other parts of the government with respect to dispute resolution. One of the first steps has involved the simple recognition of reality. Despite all the trials that the Department of Justice handles each day, we settle vastly more cases than we try, and we always have. In fact, in the civil arena, for every case we take to trial, we resolve before trial more than 100 others. According to the most recent figures, only seven-tenths of one percent of our civil cases ever reach trial. This is actually a bit lower than the nationwide civil trial rate, which Professor Theodore Eisenberg has found to be 2.9 percent.

      Acknowledging this fact leads to a number of interesting conclusions. First of all, settlement is clearly not “alternative” dispute resolution, because it is the normal course of events for a lawsuit. Indeed, it would be more appropriate to call trials “alternative” dispute resolution, because so few disputes are resolved that way. As Professor Gerald Nierenberg once said, “Litigation is merely a tool used by negotiators.”

      Once we recognize this, it becomes clear that we should focus our discovery, motions, and other pre-trial practices on settlement more than on trial, because trials are so rare. To be sure, we need to be ready for the one in a hundred cases that goes to trial, because it is important that we be fully prepared whenever we go before a judge or jury. But we should remember that settlement is a far more likely result.

      We are now encouraging our lawyers to consider settlement earlier in the life of a case. Too many of our settlements have occurred on the courthouse steps, after we have spent years in attorney time and tens of thousands of dollars in litigation costs. If we could settle cases even several months earlier, that would represent a tremendous time and money savings over the hundreds of thousands of cases the government handles each year.

      Of course, some cases should not be settled at all, because the issues involved should only be decided by a court. Other cases should not be settled until extensive discovery has been undertaken to value the lawsuit accurately. But many times, core discovery is all that is needed to determine an appropriate settlement value. At that point, great savings can be achieved by avoiding extensive litigation before a “courthouse-steps” settlement.

      In recognition of these realities, the government has moved on multiple fronts to promote the use of ADR in the last decade. Congress passed the first Administrative Dispute Resolution Act in 1990. This Act required every executive agency to “adopt a policy that addresses the use of alternative means of dispute resolution,” “designate a senior official to be the dispute resolution specialist of the agency,” “provide for training on a regular basis,” and “review each of its standard agreements for contracts, grants, and other assistance [to] encourage the use of alternative means of dispute resolution.” This was watershed legislation for the federal government, because now the law required every agency to promote the use of ADR. As with every new initiative, agencies have taken varying amounts of time to comply with the Act, but the beginnings of the comprehensive federal effort in this area can be traced to this legislation.

      The Act was not without its problems. While it authorized binding arbitration for the first time, agencies were permitted to nullify any award within thirty days after its issuance. This effectively gutted the binding part of binding arbitration, and private litigants were understandably reluctant to agree to it once they learned the government could back out (and they could not) if it did not like the award the arbitrator made. The Act also contained no exception to the Freedom of Information Act for mediation.

      Six years later, in 1996, Congress amended the Act to address these concerns. If the government agrees to participate in binding arbitration, it is no longer permitted to reject a resulting award, and private parties are gradually starting to use this process more with the government. The Freedom of Information Act no longer provides access to documents that are exchanged privately between a party and the mediator. These changes are welcome ones, and have increased the effectiveness of ADR in the government. (I should note, however, that one of the Justice Department's first experiments with binding arbitration was not an altogether happy one. [Discuss arbitration of Zapruder film case.])

      In 1998, Congress passed additional legislation requiring federal courts to promote ADR. The ADR Act of 1998 requires each district court to “devise and implement its own alternative dispute resolution program,” “encourage and promote the use of alternative dispute resolution in its district,” “require that litigants in all civil cases consider the use of an alternative dispute resolution process at an appropriate stage in the litigation,” and “provide litigants in all civil cases with at least one alternative dispute resolution process.” The Act permits courts, in their discretion, to require parties to participate in mediation or early neutral evaluation (though parties must consent to arbitration).

      This Act has the potential to reinforce the Administrative ADR Act, since the government, as we have seen, is a party in 20 percent of the civil cases in federal court. Unfortunately, to date Congress has provided no funds to implement its ADR mandate. Courts are already claiming they are underfunded, and it will be more difficult to create quality ADR programs without additional targeted funds.

      A number of presidential directives have also been helpful in promoting ADR in the government, and they have been increasingly affirmative in their tone and content. In 1991, President Bush issued an Executive Order requiring that government attorneys be trained in ADR, noting that it can “contribute to the prompt, fair, and efficient resolution” of claims. However, the order included a significant caveat, recommending ADR only if traditional negotiations have broken down. The Bush order states, “Whenever feasible, claims should be resolved through informal discussions, negotiations, and settlements rather than through utilization of any formal or structured Alternative Dispute Resolution (ADR) process.”

      In 1996, President Clinton withdrew this caveat and promulgated an Executive Order that required government attorneys to propose the use of ADR in appropriate cases. Clinton ordered that “Where the benefits of Alternative Dispute Resolution (‘ADR’) may be derived, and after consultation with the agency referring the matter, litigation counsel should suggest the use of an appropriate ADR technique to the parties. . . .”

      More recently, in a May 1, 1998, Presidential Memorandum, President Clinton was even more explicit: “I have determined that each Federal agency must take steps to promote greater use of mediation, arbitration, early neutral evaluation, agency ombuds, and other alternative dispute resolution techniques. . . .”

      A Statement of Administration Policy on a pending bill, issued by the White House on October 24, 2000, goes the furthest yet, stating that: “the Administration encourages the appropriate use of ADR to the maximum extent practicable.

      At the Justice Department, Attorney General Reno has also gone to great lengths to ensure that ADR is used in all appropriate cases. Five years ago, she formally established an Office of Dispute Resolution in the Department, headed by Peter Steenland, who has become a recognized leader in this field throughout the Federal Government. His deputy, Jeff Senger, is here with me today.

      The Attorney General has also now located a permanent source for the funding of neutrals in a Department-wide account. This is an extremely significant development, as now managers need not pay mediator fees out of their components' own budgets. By removing this economic barrier to the use of mediation, the Attorney General has made it much more readily available to our attorneys.

      The Attorney General has been tireless in spreading the message of the value of ADR throughout the Department. We recently revised our recruiting brochure to add the following paragraph:

During the past year, the Attorney General has encouraged law schools to offer students a wider variety of courses and clinical opportunities that focus on legal problem solving. The Attorney General believes that future Department of Justice attorneys can better serve the public if they have experience in negotiation, valuation of claims, client counseling, and dispute resolution. Although not a prerequisite for consideration for the Department's Honor Program, course work in legal problem solving can enhance an applicant's credentials.

      Thus, applicants from law schools such as the University of Missouri, where this course work is emphasized, may be in a better position, other qualifications being equal, than applicants from other schools. This is appropriate, because we have found that students who are well prepared to negotiate and mediate their cases can “hit the ground running” more readily than students without such training.

      We have undertaken a comprehensive ADR training program for our civil litigators. Over the past five years, we have trained more than two thousand Department lawyers — both at Main Justice and in U.S. Attorneys' Offices throughout the country. These courses have typically been three-day programs, culminating in role-play mediations with professional mediators we hire for the training. Many participants report that the chance to take part in an actual mediation, after appropriate instruction, is the highlight of the course.

      The Attorney General has also used the “bully pulpit” of her office to encourage those outside the government to use ADR. She has spoken throughout the country before bar associations, professional groups, and a recent conference of the Association of American Law Schools. In each of her speeches, she stresses how “ADR” should really stand for “Appropriate Dispute Resolution,” to emphasize that ADR is the best choice for resolving many disputes.

      Some of your professors, in discussions with Jeff Senger, said they sometimes wonder if training and emphasis on ADR really makes much difference in the day-to-day work of practicing lawyers. They expressed a concern that training in law school or in a government agency training program may have little significant long-term effect once people leave the classroom or training center. I am pleased to report to you that we have found our ADR training and other programs have made a big difference. When our ADR initiative began in 1995, Department of Justice attorneys reported they used ADR in 509 cases that year. As of the last fiscal year, that number has risen to 2,662 cases. Of course, a number of factors account for this dramatic increase over only five years. But we believe that it shows that training and other measures can have a real effect on the way lawyers do business.

      We have also found that ADR has been an extremely effective tool for our lawyers. We conducted a study of approximately one thousand cases between 1995 and 1999 in which ADR was used. The study was based on ADR evaluation forms completed by Assistant United States Attorneys for civil cases around the country. Almost two-thirds of these cases settled in the mediation session itself. Comments made by our attorneys in these cases include the following: “Mediation helped patch up an employee/employer relationship, preventing other foreseeable disputes.” “The settlement was better and more carefully designed than what a court would have ordered.” “The case would not have been resolved without ADR. When we started, the parties could not even stand to be in the same room together.” And finally, “It was great to bring the plaintiff and the agency counsel together to discuss what allegedly happened. It also encouraged the agency to realize the actual risks of trial.”

      In the cases that did not settle, our attorneys reported that the process nonetheless had value half the time. They reported benefits such as the following: “Mediation gave us free discovery and insight into the plaintiff's position.” “Mediation gave the plaintiff a reality check and moved negotiations much closer.” “Mediation showed the court the good faith conduct of the government in dealing with the pro se plaintiff.” And finally, “ADR allowed us to express our sadness at plaintiff's loss while maintaining our view that the government's medical care was adequate.”

      We also asked our attorneys to estimate time and money that ADR saved in their cases. These figures are necessarily subjective, and we have recently revised our reporting forms to try to capture more accurate data rather than rough estimates. However, even with the flaws, the results to date are interesting. Attorneys estimated how much time and money were saved compared to what would have happened if ADR had not been used. Thus, if a case probably would have settled anyway at some point, attorneys took this into consideration in their figures. On average, the estimated time saved by using ADR was six months per case — that is, the case was resolved six months earlier then it would have been without ADR. The estimated litigation expense saved per case was $11,000. Finally, the estimated attorney and staff time saved per case was 90 hours.

      There is, of course, much more to dispute resolution than settling civil litigation. In a larger sense, we work in “conflict management.” For example, the Department of Justice has been active, through our grant programs, in promoting community policing and community prosecution. We are very supportive of the concept of communities working together to solve problems that can lead to crime if they are not addressed. We have been working to incorporate these philosophies into our neighborhoods and institutions. Community policing and prosecution stress prevention through problem-solving tactics and community-law enforcement partnerships.

      Community dispute resolution programs are also making an important contribution. The Justice Department was involved when this movement began in the United States in the 1970s, funding three demonstration programs in Atlanta, Kansas City, and Los Angeles. Community dispute resolution has grown tremendously since then, and programs exist today in more than five hundred neighborhoods across our nation. Last year, we hired a Director of Community Dispute Resolution, Kathleen Severens, to spearhead our efforts in CDR.

      One important contribution of community mediation has been in the area of restorative justice. The restorative justice approach focuses on the harm caused to individual victims and the community while also emphasizing the importance of communication to help restore and heal those affected by the crime. Offenders have the opportunity to see the human and societal consequences of their actions. They also have a chance to express remorse, to take personal responsibility for what they did, and to try to make things right. Victims have a chance to gain a better understanding of what happened and to tell offenders how their lives have been affected, which for many is what justice is all about.

      The government's work in the ADR field is not limited to the Department of Justice. I serve on the Federal ADR Council, an organization of chief legal officers from more than a dozen executive agencies that is chaired by the Attorney General. The Council is issuing guidance for the entire government on federal ADR policy. Through this work, I have seen many of the successes of agencies throughout the Federal Government.

      Overall, the executive branch of the federal government now dedicates a total or 410 full-time positions and $35.8 million to ADR. If we included people who work on ADR matters on collateral duty or a part-time basis, and money spent on ADR from non-dedicated budgets, these figures would be even higher.

      Let me share with you several success stories. I referred earlier to the U.S. Postal Service, which has one of the largest and most highly regarded ADR programs in the country, either public or private. The Postal Service concentrates its ADR efforts in the workplace arena, as the agency receives more workplace complaints than any other in the government. (There are close to one million Postal Service employees, making it the largest employer in the country after the military and Wal-Mart.) Between September of 1988 and June of 2000, the Postal Service mediated 17,645 informal complaints and resolved 80 percent of them. The average mediation took just four hours. Exit surveys completed anonymously by 26,000 participants show that 88 percent of employees — and a comparable percentage of supervisors — are highly satisfied or satisfied with the ADR process. This figure is very significant because the satisfaction rate for the Postal Service's traditional adversarial workplace dispute resolution process is only 44 percent.

      A few moments ago I said that dispute resolution in the broader sense is really conflict management. The Postal Service program provides an instructive example. During the period in which ADR has been used in this agency, formal workplace complaints have dropped by 30 percent — employees have filed thousands of fewer cases each year. Postal Service officials believe that this drop is explained by the improved communication that managers and employees have enjoyed through the ADR program. The agency has statistical evidence, from a multiple regression analysis, that reduction in complaints coincides with the introduction of the ADR program, rather than any other variable that has changed during this period.

      The ADR method the Postal Service uses is known as “transformative mediation,” because it is designed to increase empowerment of the participants and promote mutual recognition of the causes of the underlying complaints. The hope is that the parties will leave the mediation understanding each other better. The substantial drop in complaints has resulted in savings of millions of dollars in legal expenses and increased productivity, not to mention improvements in morale.

      In the government contracts arena, the Department of the Air Force has used ADR in more than 100 cases, and more than 93 percent have settled. Of particular note is the agency's recent successful use of ADR to resolve a $785 million contract claim with the Boeing Company that had been unresolved for more than ten years. This is one of the largest contract claims ever settled through an ADR process. In another recent major case with Northrop Grumman, the agency settled a $195 million contract claim. Litigating either of these extremely large and complex cases through trial would have been enormously expensive, and the outcome would have been uncertain. Litigation could also have damaged relationships with some of the military's most important suppliers. In recognition of the value of these programs, The Secretary of the Air Force issued an order stating it is now official Air Force policy to use ADR “to the maximum extent practicable.” As a result, the Air Force is presently executing a Memorandum of Understanding with twenty of its most frequent contractors, committing each party to the use of ADR before resorting to litigation.

      By the way, last year I took part, along with the General Counsels of the Defense Department and the Navy, in a substantial ADR process seeking to settle through mediation the largest government contract case in history, which has been pending for almost a decade. This is the A-12 litigation between the Navy, represented of course by the Justice Department, and McDonnell Douglas and General Dynamics. Our mediator was former Secretary of State Warren Christopher, and we had a four-day mini-trial, preceded and followed by extensive shuttle diplomacy by Secretary Christopher. The effort did not produce a settlement, but it was still useful to the parties (and fascinating for me, I might add). It narrowed differences, focused issues for the forthcoming trial, and may well have increased the prospects for eventual settlement.

      The Department of Health and Human Services has also found ADR to be vital to managing its dispute process. For example, at one point the Provider Reimbursement Review Board, which handles disputes with hospitals and other Medicare providers, had a backlog of 10,000 cases. Although the agency had been able to settle 90 percent of its cases without assistance, most of these settlements occurred on the eve of the hearing, after an average of three years of delay. HHS instituted an ADR program that has saved all parties time and money. ADR resulted in settlements of 44 of the first 48 cases where it was used. Since then, use of ADR has increased. In 1999, mediation was completed in 81 cases and was underway in an additional 53 cases. ADR has also reduced the time required to resolve these disputes from three years to six months.

      HHS has also used ADR successfully to resolve big dollar disputes with state government agencies involving Medicaid administrative costs. All forty-one states that elected mediation under the Departmental Appeals Board's mediation program have successfully negotiated settlements. ADR has resolved more than $500 million in disputed funds in each of the past five years, and HHS estimates that it has saved the Federal government $600,000 in potential adjudication costs and reduced dispute-resolution time from two years to nine months. Moreover, by the parties' own assessment, mediation allowed for a fairer and less acrimonious settlement of differences, helping to preserve ongoing relationships between state and Federal officials involved.

      One final example: The Environmental Protection Agency used a variety of ADR processes to facilitate settlement of the GE Pittsfield case, involving the cleanup of contamination of the Housatonic River in Massachusetts. The agency used mediation to facilitate settlement discussions among eleven parties including EPA, GE, and other state and Federal regulatory agencies. The team of mediators assisted the parties in reaching agreement on a wide range of difficult issues including the cleanup of contaminated sediments and restoration of natural resources. Without the use of ADR, according to the EPA, negotiations among this large group of parties would have been very difficult. ADR has also permitted the parties to fashion their own remedy, including elements that a court would not have been able to order on its own. For example, in order to ensure meaningful public input, a neutral facilitator organized and is facilitating meetings of a Citizens Coordinating Council. The Council is composed of representatives of local communities affected by the cleanup. Finally, the parties established a neutral peer review process to resolve conflicts regarding technical aspects of the required remedial activities.

      I will close by challenging all of you assembled here today to push even further to institutionalize these collaborative ways to resolve disputes. We have made amazing progress in recent years, but we must work to ensure this progress continues.

      While it is gratifying that ADR has become so well established that it is no longer “alternative,” we need to make sure it does not become so mainstream that it gets co-opted by the very adversarial procedures it was designed to replace. I see some continuing legal education courses now that advertise they will teach lawyers how to manipulate the ADR process to gain a tactical advantage. Instead of sharing interests and working together to fashion creative solutions that satisfy both parties, some people are working to exploit the process for their own ends. When people start to treat ADR as an adversarial game, the process loses the collaborative and cooperative elements that make it different in the first place.

      We also need to continue to find ways to counteract the instinctive reaction many lawyers still have to litigate rather than settle. I worked for many years as a senior partner in one of Washington's largest law firms, and I am well aware that litigation divisions are often leading profit centers for firms. Many lawyers still seem to believe, one observer noted, that “ADR” stands for “Alarming Drop in Revenue.” We need to appeal to lawyers' better instincts and increase their confidence that ADR makes economic sense for their clients and, in the long run, for them.

      When I went to law school, there were virtually no courses in dispute resolution or even in basic negotiation. Today more than 150 law schools have clinics or courses in these fields, and the University of Missouri is one of the best. For the faculty members that are here today, I encourage you to continue what you are doing. Teach young lawyers the hard realities of a lawsuit. Ensure that they know how to analyze the risks of litigation and how to devise creative solutions that serve their clients' interests. Tell them what it is like to conduct extensive discovery, engage in motions practice, try the case, produce a judgment, and then find that the judgment was eaten up in costs. Let them listen to a client who has spent three years winning a lawsuit, only to have the judgment reversed on appeal and come back still unresolved.

      And for those of you who are involved in fields other than litigation, I can tell you that I see the value of collaborative approaches outside of the courtroom every day. I supervise thousands of lawyers in twelve different components of the Department, and my job often involves settling policy and turf debates among them. Other times I must help resolve disputes between different agencies in the government. As the Attorney General has noted, we often have five lawyers on one side of a conference table and five lawyers on the other side, with ten different opinions as we try to reach a solution that will serve the interest of the people of the United States. These lawyers are well versed in the law, and they are able. But, they are not always effective in presenting their views. Some of them are good at talking but not at listening to others or absorbing the reactions of others to their views. Some of them listen but don't hear, and if they hear, they don't heed.

      In contrast, some know how to present their case, how to persuade, how to facilitate problem-solving by their voice and their manner. They look people in the eye and argue for their result, but at the same time they are sensitive to the views of others and work to accommodate them. These are the lawyers who are most productive in resolving disputes.

      These principles are important not just in the law but throughout society. We should strive to use collaborative dispute resolution whenever we can, and to resort to combative dispute resolution only when we must. Those of you here today are in a unique position to promote this approach. I urge you to remember both what you have learned and what you have taught each other about this field here at the University of Missouri. Continue to promote the cause. Our goal is that the next generation will know a more cooperative and peaceful world.