State Bar of Michigan NEXT Conference 2018: Alternative Dispute Resolution

Episode Notes

Transcript

State Bar of Michigan: On Balance Podcast

State Bar of Michigan NEXT Conference 2018: Alternative Dispute Resolution

10/29/2018

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Intro: Welcome to State Bar of Michigan’s On Balance Podcast, where we talk about practice management and lawyer wellness for a thriving law practice with your hosts JoAnn Hathaway and Tish Vincent, here on Legal Talk Network.

Take it away, ladies.

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Rob Mathis: Hello and welcome to another edition of the State Bar of Michigan’s On Balance Podcast on Legal Talk Network. I am Robert Mathis, along with Laurin Thomas from the State Bar of Michigan, sitting in today for your regular hosts JoAnn Hathaway and Tish Vincent.

We are live from the State Bar of Michigan’s NEXT Conference 2018 in Grand Rapids in Michigan, and joining me today I have Judge Wendy Baxter.

Judge Wendy Baxter: Hello.

Rob Mathis: And Graham Ward. So Judge Baxter, you wanted to tell me a little bit about yourself?

Judge Wendy Baxter: I am a retired Wayne County Circuit Court Judge, I now practice mediation and ADR, which is our topic today, and the name of my practice is WinWin Facilitation.

Rob Mathis: I like it. And Graham.

Graham Ward: I am a 46-year lawyer, 35 years as a trial lawyer in the Metropolitan Detroit area, tried many a case in Wayne County, and about 12 years ago I did a little switch and I started teaching. I’m affiliated with Western Michigan University Cooley Law School, teach a number of courses there that I would place under an umbrella of conflict management, and that includes ADR and mediation.

Rob Mathis: All right, so I’m going to ask you a very broad question, Graham, where are we with ADR?

Graham Ward: We are a lot further along than we were when I began this practice. ADR was an afterthought. ADR in Wayne County only applied to cases of clear liability and you’d have a plaintiff’s lawyer and a defense lawyer and a sitting judge and as time went on and we became a little bit more sophisticated about solving problems it became institutionalized. We developed what we called Mediation back then which was what we call Case Evaluation now, and as the years have gone on we’ve just recognized more-and-more about the value of resolving conflict. We only try 1% of our cases.

So in order for us to maintain our utility and be worthwhile we have to find better ways to resolve cases and how to help people resolve cases efficiently, preserve relationships, be creative.

Judge Wendy Baxter: I think when government budgets got tighter and tighter, they saw more and more value in ADR as a tool because they needed to reduce dockets, and as you probably will know they reduced a lot of judicial positions, and so it was a downsizing or right-sizing of sort and it also is seen as a vehicle to create jobs for lawyers. Because as long as you are out there privately conducting resolution practice then that is — that much fewer cases on the state court and the federal court dockets. So it’s a time-saver, it can be a money saver, but it’s still while it’s evolved into a specialty practice, it’s all I do now.

It’s still evolving and it still has a number of flexible places and it even though now it’s considered a sort of expertise and we’ve got a component of ADR that has a lot of rules, for example, arbitration has a lot of rules and it’s used in various different ways especially in corporate America and people have their pros and cons and likes and dislikes about the way it’s used in corporate America.

But for a litigation tool it still got a lot of flexibility and a lot of opportunities as he said to be creative and allow the parties and their attorneys to handle their own business so to speak. You don’t have a judge and a jury deciding and the whole community involved in your conflict resolution, you go out there and manage your problem yourself between your attorney and their attorney and you as a party and the party with whom you have that conflict, and you can choose one from column A, one from column B and form your own ADR service to suit your thing.

So it’s — ADR, it’s not one size fits all, although it has evolved with a lot more rules and a lot more ethics, it’s still pretty flexible.

(00:05:02)

Laurin Thomas: So, what does a practitioner have to know in order to do it effectively?

Judge Wendy Baxter: That’s interesting. I really have been out here doing ADRs about six years now, and I’ve been effective much to my surprise because my ADR practice has been successful but I did ADR intuitively.

When I got introduced to ADR as a judge, it was not by a lawyer expertise, it was by a layperson — this is Zena Zumeta.

Rob Mathis: Zena, yes, Zena Zumeta, yeah.

Judge Wendy Baxter: She is the one that taught the judges the 40-hour with all the judges of the entire — I can’t remember if it was the entire bench or only the civil division of the bench, but we all took a week off to learn 40 hours of training in ADR, and she was a lawyer. But the way I practice ADR is very lawyer-specific. I use the tools that I acquired in my 35 years of practice both in civil and criminal, and in doing settlement conferences.

So lots of people look at me and ask me what I do now, and I say, I’m a mediator, and they go, oh, I want to do that, oh, I can do that. They think they can go off someplace and learn to be a mediator and I am just kind of like, hmm, I think you can do what I do, huh? Okay.

Graham Ward: This is really interesting, and if I were speaking to almost any group and then includes lawyers but I say it to my students and I’d say it to just the general public, ADR has two major advantages in my mind. It allows you to control the resolution that you have to live with and it allows for creativity.

I’m a supporter, a strong supporter of the civil jury system but we don’t try many cases anymore, and as good as the system is for resolving the cases that refuse to let themselves get resolved, there’s no limit, there’s no rule, just right that’s the Outback Steakhouse motto.

Let me give you an example. We’ve been watching hearings in the United States Senate the last couple of weeks dealing with problems where you’ve seen one side virtually impose a process upon someone else. When you’re designing a process in ADR you have the room for the back-and-forth and when you do that people are invested in the process, they almost view a failure to reach agreement as something that they are responsible for as opposed to, well, the jury just didn’t see it the way I did.

I think ADR provides an opportunity for lawyers to add so much more utility to the services we offer, it’s behavioral, it’s humanistic.

Rob Mathis: So, Judge Baxter, you said that one size doesn’t fit all, so what are the different types? People say ADR it’s not just ADR, what are the different types of ADR?

Judge Wendy Baxter: Case evaluation was a Michigan term that we use for putting a dollar value on a case and it’s done by a neutral, a plaintiff’s expert and a defense expert and everybody presents to that panel, and then the panel puts a dollar value on it, that’s called evaluative mediation.

All over the country mediation was considered facilitative mediation where you did not put a dollar value on it, the parties came to an agreement and ideally a settlement and they arrived at an agreement about what dollar value they thought would settle the case and in family law facilitative mediation was going to work out not just the property problems but also the family and human kind problems, the child care, the child custody, the child support.

And so mediation is the word that Michigan finally joined caught up with the rest of the nation to apply to people getting in agreement with the other side and figuring out how to handle their own business, solve their own problems.

Arbitration is the one that the commercial industry has been using to great effect and that will state like Michigan when you become an employee you probably sign on with the employee handbook in one way or another and it might have a thing in there that says you can’t sue us, same thing about your credit card, you can’t sue us. We are going to go to arbitration and we’re going to go to arbitration in Wauconda and you live in Michigan.

(00:10:09)

And so that kind of arbitration has received its criticism since it’s been exposed and not everybody is happy —

Rob Mathis: Well-deserved criticism.

Judge Wendy Baxter: — with that kind of ADR. Oh yes, indeed, well-deserved criticism. So, there is arbitration with one judge like me, a person can hire me to be a private judge, like a one judge panel and you can fashion that any way you see fit. We can do it just like Judge Judy and do it just like I used to do it in my own courtroom or we can do away with the rules of evidence and civil procedure because the parties get to write a contract about what will be the rules of how we do this particular arbitration.

So, I think I’ve named quite a few, can you think of one you like to —

Graham Ward: What I’d like to suggest is simply the opportunity that you have when you’re dealing with arbitration to make it your way. You have a choice in your arbitrator, you get to see who it is that’s going to be the decider, that matters. It was in the old days when you were waiting to file — waiting in a line to file a lawsuit, there might have been 30 judges in the circuit and there might have been 10 that you’d be happy as can be and another 10 that might not be happy at all and 10 in the middle, but you never knew.

There’s a real value to be able to say both sides said yes to this person to decide what evidence is going to come in, to decide — we have some options. You can high-low agreements, you may not necessarily disclose them to an arbitrator but by doing so you can create what I say a way to avoid some of the worst case scenarios.

Laurin Thomas: A safety net.

Graham Ward: Yeah, yeah, I like — I like that.

Laurin Thomas: As a practitioner are there areas of the law that are better suited for ADR and are there better areas that are suited to transition to being an ADR practitioner?

Judge Wendy Baxter: Well, I always believe that you could go to law school and become a lawyer at 89 years after doing communications your whole life, because law touches everything, similarly ADR touches everything. ADR is so flexible that there’s — it’s no place where it would not be unwelcome for conflict resolution.

Graham Ward: One of the biggest advantages of mediation, both on an academic and a realistic manner, is about preserving relationships. 80% of all conflict is between people that have pre-existing relationships, that conflict can either make that situation worse or it can make it better.

Mediation allows that, probate court, siblings fighting with each other, that’s a terrible situation to put in the hands of a third-party decider who will bind them forever. They are going to be siblings forever. It’s a collaborative process.

I remember when collaborative law was first being spoken of and we applied it only to divorce so we only thought of it as applying to divorce, it applies everywhere.

Business people that get in litigation that they have pre-existing relationships, you can divorce a married couple but you can never divorce their status as parents of the children, even when they’re not children anymore.

Rob Mathis: Well, that is the end of our prepared questions. Is there anything else you would like to add that we didn’t touch on today?

Judge Wendy Baxter: Well, I added a section to my presentation today about peacemaking, which is a little different than what lawyers generally do and is derived from the Native Americans and the tribal courts engage in peacemaking.

Peacemaking is there to do something akin to what mediation tries to serve in the family courts and that is to redirect relationships to have people take accountability for the act and the relationships to restore if not redefine the relationships but to bring peace back into and to reintegrate people back into the community because peacemaking is kind of ADR that may address a harm that was done as opposed to a lawyer and expertise specific that may address an issue with a contract. We may address the issue with a tort personal injury, which is a harm treated with money as opposed to a harm that restores an estrangement.

(00:14:57)

And there’s a lot of other kind of restorative justice that deals with things that might happen in schools between teachers, between students, between teachers, parents and students.

Graham Ward: Bullying issues.

Judge Wendy Baxter: Yeah.

Graham Ward: Special education issues, these are significant matters.

Judge Wendy Baxter: And the approaches are very different because certain kinds of ADR puts angry people, people with conflict in the same room together and when that happens you better do some pre-session work to try to get people who are mad at each other and have heightened emotions and a problem and you’re going to put them in the same room together and do what, as opposed to two businessmen sitting in two different rooms where a mediator tries to resolve a contract matter which is more about negotiation, and I treat a lot of personal injury cases between strangers just like a contract case, they’re never in the same room together. We’re going to work it out, I’m going to do some shuttle diplomacy between the stations that I’ve put each party in, but when you have people wedded to the land or the situation or the family, the kind of peacemaking and restorative justice practices take a different approach but it’s all still under the umbrella of ADR.

Graham Ward: Just one, maybe one quick thought at the end. I teach a lot about victim-offender mediation and restorative justice which originated in the criminal process. I think the future holds a lot of behavioral law and it holds it in a sense of restorative civil practice.

We need to do more than just write checks. We have options and I think the time will come in the relatively near future when we’ll understand a lot more applications of the criminal behavioral stuff into civil justice.

Judge Wendy Baxter: Well, I guess in application of restorative justice in employment law if you want to keep your job, the employer wants to keep this person that they’ve invested in and has training and skills and so restorative justice has a place in the work world, in the business world and as we have all indicated, it has a place to keep children especially out of the criminal justice pipeline.

Rob Mathis: So, Laurin and I have one more question for you. If our listeners would like to follow up with you what is your contact information, Judge Baxter?

Judge Wendy Baxter: WinWin Facilitation is housed in the Wayne County Mediation Tribunal, so I’m at 333 W 4th Street, that’s where I hold all of my conferencing sessions and our published phone number is (248)904-0600.

Laurin Thomas: And your WinWin, does that W-I-N W-I-N?

Judge Wendy Baxter: It’s not like my name which is the regular kind of Wendy, not like the Windy City but it is a play on words and I’m trying to produce a win-win situation, so both parties leave, shake hands and think they did a good job, and if I did a good job I’ll get their business back.

Graham Ward: From my point of view I’m interested more in educating the public. I’d like to — I speak to groups and being with the law school I’m in Grand Rapids, but I also teach in Lansing and I can be reached at (616)301-6800, extension 6727, or my cell phone (586)612-1704. I like to consider myself an advocate for people to use the experience of practicing attorneys.

Rob Mathis: Great, well, that is all the time we have for the program, Laurin Thomas and Robert Mathis, myself, thank you so much for joining us today Judge Wendy Baxter and Graham Ward.

Judge Wendy Baxter: It was my pleasure to be here.

Graham Ward: Yes, very, very, very nice process.

Rob Mathis: And I also want to thank our listeners for tuning in. If you like what you heard today, please rate us in Apple Podcasts.

Again, I’m Rob Mathis and Laurin Thomas, we’ll see you next time for another episode of the State Bar of Michigan’s On Balance Podcast on Legal Talk Network.

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Outro: Thank you for listening to the State Bar of Michigan: On Balance Podcast, brought to you by the State Bar of Michigan and produced by the broadcast professionals at Legal Talk Network.

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The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network or the State Bar of Michigan or their respective officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

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