Address by Attorney General Janet Reno on Alternative Dispute Resolution and Negotiation to the American Judicature Society Chicago Bar Association Standard Club




       3               UNITED STATES OF AMERICA

       4                 DEPARTMENT OF JUSTICE



       7                      JANET RENO

       8                   ATTORNEY GENERAL


      10                     NEGOTIATION"



      13              American Judicature Society

      14                Chicago Bar Association

      15                     Standard Club

      16                   Chicago, Illinois



      19                   February 5, 1998




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       1                 P R O C E E D I N G S

       2               ATTORNEY GENERAL RENO:  Thank you

       3     very much, Patty.  It is a real pleasure to

       4     be here.

       5               It is particularly wonderful for

       6     me, Esther, to have the opportunity to see

       7     you presented with this recognition.  You

       8     have been there, as a support, ever since I

       9     came to Washington, and thank you.  You are

      10     an example for us all.

      11               Scott, I want to congratulate you,

      12     and thank you, again, for your willingness to

      13     undertake the interim responsibility.  That,

      14     sometimes, is more difficult than the new one

      15     you embark on.

      16               Dick, thanks for being here.  My

      17     heart is always with local prosecutors.

      18               You can't get out of it, after 15

      19     years.  I really want to thank Patty and the

      20     Bar Association; Terry Murphy, for all that

      21     you have done to make this possible; and the

      22     American Judicature Society; and Sandy, I

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       1     really appreciate that, the effort that you

       2     all have gone to, to make this possible.

       3               I love the law, and I love good

       4     lawyers.  I don't like greedy, indifferent

       5     lawyers.  I really love lawyers who use the

       6     law as an instrument of justice; who use the

       7     law in defense of liberty.

       8               I love lawyers who use the law to

       9     build community, to help their Nation, and to

      10     help those who cannot afford a lawyer.

      11               I have had the opportunity, in

      12     these last five years, to meet so many

      13     wonderful lawyers across this Nation.  I am

      14     very, very proud of the profession.  But as a

      15     Nation and as a profession, we face a great

      16     challenge.

      17               Individuals across this country are

      18     isolated, one from another.  We move from

      19     place to place without putting down roots.

      20     With every increasing frequency, we change

      21     jobs, as a skill or a vocation becomes

      22     obsolete.

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       1               We build out walls to close out

       2     others.  We don't listen with a listening

       3     ear, and we don't know how to talk to each

       4     other.  We, too often, talk through each

       5     other.  We move so fast and go so long on a

       6     day; that we don't take the time to form the

       7     ties that create community.

       8               Many Americans feel helpless,

       9     disenfranchised, and alienated.  More and

      10     more Americans who work hard are falling

      11     behind in earning power, as the middle class,

      12     in some instances, evaporates.  Too many

      13     Americans have no sense of hope or purpose,

      14     and they turn to the law.  But too often,

      15     they do not find answers.

      16               They don't find answers in the law

      17     because, in many instances, they cannot

      18     afford the law.  For the law was not used to

      19     solve their problem, or the law created more

      20     troubles and caused more division and more

      21     conflict than it ever achieved in healing.

      22     Sometimes, they just lost the case, and

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       1     sometimes, they won the case, but it wasn't

       2     worth it because of the expense, the time,

       3     and the trouble.

       4               I suggest that lawyers, in America

       5     today, can play a powerful role in addressing

       6     this situation in this country, if they

       7     explore, expand, and prize their role as

       8     problem solvers and peacemakers.  I think, if

       9     we are to preserve the law as the magnificent

      10     tool for justice that it is, we have no

      11     choice but to address this challenge.

      12               On the east wall of the main

      13     Justice Building in Washington, on Ninth

      14     Street, there is a marvelous statement carved

      15     in the stone of the building:  "The common

      16     law is derived from the will of mankind,

      17     issuing from the people, framed by mutual

      18     confidences, and sanctioned by the light of

      19     reason."

      20               If people don't believe in the law,

      21     if the law doesn't serve the people, if it

      22     doesn't solve their problems, if it doesn't

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       1     defend them, the law, as we love it and know

       2     it, can be irreparably hurt.

       3               The question, then, is:  How can

       4     we, as lawyers, in this complex, modern

       5     society, in a profession that is rife with

       6     competition and specialization, achieve the

       7     goals, the goals of peacemaking and problem

       8     solving?

       9               I have a few suggestions.  First,

      10     we must take steps to make the law seem less

      11     complex to the ordinary citizen.

      12               Winston Churchill said it best:

      13     "We need to use small, old words."

      14               Everyone of us can do this, when

      15     you advise a client, draft a will, prepare a

      16     contract, file a pleading in court, or

      17     prepare legislation.  This sounds like such a

      18     small thing.

      19               My grandfather practiced law and,

      20     in those days, complaints were oftentimes

      21     three and four pages long for a simple

      22     divorce.  He did it, in about a page.

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       1               Some lawyers snuck into the Clerk's

       2     Office, one night, to pull the files to see

       3     how he did it.  He used small, old words.

       4               I am competent that, over time, by

       5     de-mythifying the law for people, we can give

       6     them a greater confidence in the law and make

       7     them more willing to turn to the law for

       8     solutions.

       9               Small, old words will help people

      10     see lawyers and the law in all its true

      11     potential and glory.

      12               Secondly, we must have the courage

      13     and the creativity to stop short of

      14     litigation and try more effective and more

      15     low-key methods of resolving disputes.

      16     Entrusted by our clients with resolving their

      17     disputes, we should make every effort to

      18     solve the problem that caused the dispute

      19     before we resort to the court house.

      20               I am not offering anything new.

      21     Somebody 150 years ago said it better than I

      22     can.  He was a member of the Illinois Bar,

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       1     and his name was Abraham Lincoln.

       2               He said:  "Discourage litigation.

       3     Persuade your neighbors to compromise,

       4     whenever you can.  Point out to them how the

       5     nominal winner is often a real loser in fees,

       6     expenses, and waste of time.

       7               "As a peacemaker, the lawyer has a

       8     superior opportunity, being a good man.

       9     There will still be business enough."

      10               And, there will be business enough!

      11               At the Department of Justice, I

      12     took steps two years ago, to make the use of

      13     what I call, not alternative dispute

      14     resolution, but appropriate dispute

      15     resolution, a reality.  I use appropriate

      16     dispute resolution, because sometimes a trial

      17     is by far and away the most appropriate

      18     method.

      19               We want to ensure; however, that

      20     our attorneys will use problem solving and

      21     dispute resolution as a regular tool for

      22     seeking justice.

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       1               This has been such an exciting

       2     project.  At first, Assistant United States

       3     Attorneys looked at me quizzically.  Judges

       4     kind of puzzled about it.  Magistrates said:

       5     "H-m-m-m."  And, opposing counsel grimaced.

       6     But that is not happening as much, these

       7     days, and here are some of the things that we

       8     have done.

       9               As Patty indicated, I asked Peter

      10     Steinland to be the Senior Counsel for

      11     Appropriate Dispute Resolution, and we

      12     created an office that has focused on this

      13     effort.

      14               I sent a message to the trial

      15     lawyers, that trial lawyering was very, very

      16     important.  That in everything we did in the

      17     Department of Justice, whether it be civil

      18     rights enforcement, environmental

      19     enforcement, I wanted to go to the people

      20     involved, to the industry being regulated,

      21     and say:

      22               "This is the law, and we want to

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       1     work with you.  We want to resolve problems

       2     up front.  If it is a CRIPA, an institutional

       3     case, we want to focus on that, and work with

       4     you to resolve the problem for the long run.

       5     If you don't want to work with us, we are

       6     prepared to go to trial, and we are prepared

       7     to take you to court."

       8               If we are going to be successful in

       9     this effort, we have got to be at home enough

      10     in the courtroom, and vigorous enough in the

      11     courtroom, to let people know that we mean

      12     what we say.  I wanted to make sure that we

      13     have the tools to be the peacemaker, to be

      14     the problem solver.

      15               Every Department of Justice

      16     attorney, in civil practice, is being trained

      17     to be a better negotiator and to use a form

      18     of dispute resolution, such as mediation or

      19     arbitration, whenever it is appropriate to do

      20     so.

      21               We have established a fund that our

      22     lawyers can use to hire professional,

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       1     third-party neutrals, to assist us and our

       2     opponents to reach consensual resolutions.

       3               We evaluate our attorneys, not only

       4     on their skills in legal research and

       5     writing, or on their trial skills, but also

       6     on their ability to negotiate and use

       7     mediation and other forms of dispute

       8     resolution.

       9               I have told our supervisors that,

      10     when they make decisions such as promotions,

      11     they are to give the same consideration to

      12     attorneys who settle cases on terms favorable

      13     to the government as we have to those

      14     attorneys who have litigated cases to a

      15     result favorable to the government.

      16               Our Office of Dispute Resolution

      17     works with Assistant United States Attorneys

      18     across the country and with our lawyers in

      19     Washington, helping them to find qualified

      20     neutrals, advising them in, what I call,

      21     mediation advocacy, and working with our

      22     client agencies to ensure that they are joint

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       1     partners in these efforts.

       2               As a result of these and other

       3     efforts, we are making good progress in

       4     promoting problem solving and peacemaking in

       5     the Department of Justice.  In two years, we

       6     have tripled the number of cases where we

       7     have used mediation and other forms of

       8     dispute resolution.

       9               Mediators have helped us to settle

      10     tort claims, environmental disputes, work

      11     place disputes, affirmative civil rights

      12     cases, False Claims Act cases, issues of

      13     administrative law, and disputes involving

      14     Indian tribes.

      15               Now, Peter is a little bit wrong

      16     when he said I got this idea in a classroom.

      17     I got the idea by recognizing that, because

      18     of crowded calendars and tremendous case

      19     loads in a local prosecutors office, we

      20     negotiated by far and away the greatest

      21     percentage of our cases.

      22               Here were lawyers with trial skills

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       1     negotiating these cases, but they didn't have

       2     negotiation skills, and it seemed to be that

       3     we had to look at these range of skills in

       4     order to make our lawyers complete lawyers.

       5               So, Peter, we need to get on

       6     talking about the criminal side, too.

       7     Because oftentimes, you can litigate a case

       8     and reach a conclusion of guilt or innocence,

       9     but you don't solve the problem that caused

      10     the situation in the first place.

      11               These skills can be useful in any

      12     instance, if properly applied, and if applied

      13     in the instance where the facts dictate it.

      14               As you know, the Department of

      15     Justice is responsible for more litigation

      16     than anyone else in the Federal courts.  As I

      17     have indicated, some of these cases cannot,

      18     and should not, settle.  Those cases are not

      19     targets for our program, but there remains a

      20     tremendous potential for even greater use of

      21     these processes in the future.

      22               There are several important reasons

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       1     why everyone should consider doing everything

       2     we can to expand this effort.

       3               Litigation looks to the events of

       4     the past and asks a judge to decide who was

       5     right and who was wrong.  The job of the

       6     judge is to decide who wins on the facts and

       7     legal issues presented in the dispute.

       8               The judge, in most instances, is

       9     not appointed to be the problem solver.  That

      10     is our duty, as counsel.

      11               In contrast, a mediator asks the

      12     parties, what are their interests?  Learns

      13     what they need, to resolve the dispute.  In

      14     that sense, the mediator looks to the future

      15     and to the problem that underlies the legal

      16     issues advanced by the litigator.

      17               For this reason, it is not a sign

      18     of weakness to suggest to your client or to

      19     opposing counsel that dispute resolution be

      20     considered as an alternative to litigation.

      21     The mediator can help you be a better problem

      22     solver for your client.

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       1               When disputes arise in the context

       2     of a continuing relationship, the role of a

       3     mediator can be especially important because

       4     that neutral mediator encourages the parties

       5     to negotiate creative solutions that will

       6     preserve the working relationship while

       7     settling the dispute.

       8               When parties try to settle their

       9     cases, on their own, they often resort to

      10     familiar positional arguments, such as:  "My

      11     case is stronger than yours, so your

      12     concessions must be greater than mine if we

      13     are going to settle this case."

      14               In contrast, a good mediator finds

      15     common ground, works with each party in the

      16     confidentiality of private sessions to aid

      17     them in identifying real interest and

      18     creative options for settlement.  When these

      19     processes are used properly, disputes between

      20     supervisors and employees can be resolved in

      21     ways that allow parties to continue working

      22     together.

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       1               I don't think we have begun to tap

       2     what can be done with mediation, with dispute

       3     resolution, and employer-employee disputes.

       4     Similarly, healthy relationships between

       5     buyers and sellers are not destroyed when the

       6     contentiousness of litigation is avoided.

       7               For the Department of Justice,

       8     disputes with our citizens can be resolved

       9     with a minimum of delay and adversity.  By

      10     settling cases through dispute resolution, we

      11     are gaining better settlements, freeing our

      12     resources to litigate more effectively those

      13     matters that cannot, or should not, be

      14     settled.

      15               Such settlements also enhance the

      16     public's access to justice by freeing

      17     judicial resources for those who truly need a

      18     litigated resolution.

      19               We, at the Department of Justice,

      20     are not alone in recognizing the benefits of

      21     dispute resolution to settle litigation.

      22     Every United States Court of Appeals, with

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       1     the exception of the Federal Circuit, has an

       2     established case settlement program that

       3     offers free mediation of cases on appeal.

       4               I have met with these mediators,

       5     and I am tremendously impressed with their

       6     dedication and professional skill and what

       7     they have done within their Circuits to

       8     spread the word about how effective these

       9     processes can be.

      10               Many District Courts have also

      11     adopted dispute resolution programs.  We are

      12     working with the Federal Judicial Center to

      13     have more United States Magistrate Judges

      14     trained in mediation skills, and will support

      15     efforts to promote greater use of dispute

      16     resolution through professional or voluntary

      17     services in Federal District Courts.

      18               Congress passed the Administrative

      19     Dispute Resolution Act in 1996 to encourage

      20     the Federal agencies to make greater use of

      21     dispute resolution at the agency level and to

      22     avoid the need for litigation, altogether.

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       1               We are working with our client

       2     agencies to assist them in developing

       3     vigorous dispute resolution programs in a

       4     variety of subject matter areas.

       5               At the invitation of the Secretary

       6     of Defense, I addressed approximately 200 top

       7     leaders in the Department of Defense, both

       8     military and civilian, and it was fascinating

       9     to see the reaction from managers who had

      10     never considered, before, what could be done

      11     if they resolved the dispute before they sent

      12     it over to that Justice Department to fuss

      13     with for too long.

      14               It is fascinating to see what

      15     happens when you remind a client:  "Look, you

      16     have got to value the case.  You have got to

      17     understand what it is worth to you.  You have

      18     got to understand what it is worth in

      19     expense, in time, and trouble."

      20               We found that, too often, clients

      21     didn't evaluate the case.  They just dumped

      22     it in the lawyer's lap and let the lawyer

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       1     take care of it.  We have got to go further,

       2     and educate clients, all our clients, as to

       3     the value and as to the processes of

       4     appropriate dispute resolution.

       5               As lawyers, we should encourage

       6     every opportunity to promote greater use of

       7     dispute resolution because of its

       8     problem-solving potential.

       9               We should also reaffirm our role as

      10     peacemakers and problem solvers, and lead the

      11     way by teaching our communities how to

      12     resolve conflicts without knives and guns and

      13     fists.  How to solve problems, whether it is

      14     rehabing a HUD housing project; where do you

      15     get the money; how do you provide the

      16     management; what do you do.  How to solve

      17     these problems, without litigation, by

      18     listening, by understanding, and by clear and

      19     persistent communications.

      20               One way to do this is to ensure

      21     that our young people have the tools at their

      22     disposal to resolve conflicts that confront

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       1     them.

       2               I urge you, because I know this Bar

       3     has done so much in terms of activities

       4     within the community, to work with your

       5     schools, neighborhood associations, houses of

       6     worship, and other institutions, to promote

       7     conflict resolution and problem solving.

       8               In San Antonio, Texas, I met with

       9     young high school students, who were learning

      10     peer mediation, because the Young Lawyer

      11     Section of the San Antonio Bar was leading

      12     the way in teaching them.  It was so exciting

      13     to see what the youngsters had learned; what

      14     they were teaching faculty members; and what

      15     everyone was doing as a result of some young

      16     lawyers, who took the time to perfect their

      17     skills and to translate them for young people

      18     in a way that could be effective.

      19               I have had the opportunity to watch

      20     teachers learning, on their own time during

      21     the summer, about how to be the mediator in

      22     the classroom or on the playground, and it is

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       1     so exciting to hear a teacher, suddenly, say:

       2     "O-h-h, I could have used this, right at that

       3     particular point where they got into the

       4     fight."  To see the excitement on the part of

       5     these teachers, as they actually learned a

       6     new skill.

       7               I just have the dream of every

       8     teacher's college being able to teach dispute

       9     resolution, problem solving, communication to

      10     all of their teachers, so that every teacher

      11     in America has that skill.

      12               Lawyers know more than most.

      13     Lawyers can lead the way.

      14               We know that dispute resolution

      15     techniques can help us all.  I walk out of

      16     those training programs with the teachers,

      17     and I am a much better listener as I sit at

      18     my conference room table.

      19               I point out to the teachers that,

      20     sometimes, I don't have the luxury of time to

      21     let the process take its course and,

      22     sometimes, they have to be the arbitrator.

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       1     But the listening process, the creative

       2     solutions, the communication is so important.

       3               Dispute resolution is really a

       4     necessary life skill at which we should all

       5     be proficient, just like reading, writing,

       6     math.  These are aspirational goals for all

       7     of us.  They are steps that we can take to

       8     improve our profession and our community.

       9               As I have mentioned, I had Roger

      10     Fisher for Civil Procedure in 1962.  Nobody

      11     ever mentioned the word, negotiation.

      12               I had a chance to talk to the

      13     professor from Northwestern, and just in 20

      14     years, what he has been able to do.  You can

      15     learn these processes.  Children can learn

      16     these processes.

      17               The Bar, and lawyers across

      18     America, can lead the way in peacemaking and

      19     problem solving.

      20               I have the dream of every teacher,

      21     every mentor, every community police officer,

      22     every student learning these skills, just as

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       1     they learn to do reading and writing.

       2               Think of what it would mean for

       3     this country, but there is more to do.

       4               We have juvenile justice

       5     legislation pending.  We have requested

       6     funding for these prevention programs.  It

       7     could cover programs, just such as this.

       8               We must work together to get that

       9     legislation passed, to get that appropriation

      10     passed, so that we can spread this skill.

      11               Peacemaking and problem solving:

      12     How do we go about conveying it, throughout

      13     the profession?

      14               Our law schools and other

      15     educational institutions have a very

      16     important role in shaping our future society.

      17     We must begin to train more lawyers, who have

      18     multidisciplinary skills, who are prepared to

      19     take the kind of steps and processes that

      20     will meet the impressing needs of our

      21     society.

      22               Teach them to value that case.

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       1     Okay, it has got this dollar value on it, but

       2     have you considered the time and the trouble

       3     for the client?  Have you considered what

       4     putting them through litigation will mean?

       5     What is it worth?

       6               How do we combine trial practice

       7     with the practice of problem solving and the

       8     practice of conflict resolution?

       9               We can do it, if we put the people

      10     first, if we remember that the law is derived

      11     from the will of the mankind, that it issues

      12     from the people, that it is framed by mutual

      13     confidence.

      14               Until we truly make the law the

      15     instrument of people to solve their problems,

      16     we will not succeed.

      17               Professor Carrie Menkel Meadow, of

      18     Georgetown Law School has written that if our

      19     future lawyers are going to be effective

      20     problem solvers, they will have to be taught

      21     these lawyerly tasks.

      22               As law school alumni, we should

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       1     participate in ongoing discussions in the

       2     legal academic community over how best to

       3     train new generations of lawyers, and we

       4     should take that training and share it with

       5     young people, with others as well.

       6               We must do more, and we must

       7     realize that there are a whole group of

       8     people out there that can't afford the law.

       9     With shrinking budgets, we have got to do

      10     more.

      11               We have got to think in terms of

      12     colleges, or the creation of colleges, of

      13     community advocacy that would train lawyers,

      14     non-lawyers, in how to solve neighborhood

      15     problems before crimes are committed; how to

      16     advocate for children and families; how to

      17     navigate welfare and housing bureaucracies;

      18     and how to organize and ensure safe and

      19     healthy neighborhoods.

      20               I said that, once, at a House of

      21     Delegates meeting, and I got a call from

      22     Illinois, from a very irate person, who said:

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       1     "You are taking cases from lawyers!"

       2               And I said, "I haven't seen a

       3     lawyer handle some of the cases I am talking

       4     about, in a very long time."

       5               Most lawyers don't know how to

       6     solve the problem of getting the vacant lot

       7     cleared, of getting the crack house down, of

       8     getting the problem solved with the landlord.

       9     There is so much that we can do if we

      10     encourage others to be problem solvers, as

      11     well.

      12               We have an extraordinary

      13     opportunity.  The legal profession has an

      14     opportunity to help bring this Nation

      15     together; to build understanding, rather than

      16     to divide it; to build community, rather than

      17     to fragment it; to be the peacemaker and the

      18     problem solver, as never before in the

      19     history of the profession.

      20               At the same time, we must never

      21     forsake our role as defenders of liberty and

      22     advocates for justice for all Americans.

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       1               But, isn't that what life is all

       2     about?  When do we use the sword, and when do

       3     we reach out our hand and listen and talk our

       4     way to understanding?

       5               If lawyers are taught how to, and

       6     if they hone and prize their skills as

       7     peacemakers and problem solvers, then they

       8     will be far better prepared to serve their

       9     clients, their community, and their Nation.

      10               In this next millennium of the

      11     practice of law, we may know a more peaceful

      12     Nation and a more peaceful world.

      13               Thank you very much.

      14                    (Whereupon, the proceedings

      15                    were adjourned.)

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