Having grown weary of pondering various aspects of the criminal law, specifically a formal adoption of the cultural defense, I've moved on to the less theoretically provocative though more practically useful world of ADR. As always, your thoughts, comments, and reactions are welcome at email@example.com. -PV
As I mentioned in an earlier posting, I am spending the summer clerking for a federal judge in Cincinnati, Ohio. To date, I have intimately participated in five settlement conferences and have assisted my judge in preparation for and analysis of each conference. With this background, I have come to a few conclusions about the process.
First and foremost, it is absolutely apparent that cases only get solved when parties make a substantial concession before they come to the table, are ready to make a further concession at the table, and end the matter on terms mutually undesirable. That at the outset a plaintiff has unrealistically high demands and a defendant has a seemingly naive understanding of its potential exposure is without question. However, what is also evident is that both sides are rational enough to understand that a compromise lies somewhere in the middle. What both sides do not want to hear, though, is that the only way to reach that middle ground is to (1) ignore the merits and (2) check emotion at the door.
To be sure, this is never easy. It certainly isn't easy for the plaintiff who wants a pound of flesh for having been wronged. And it isn't any easier for the defendant who wants to set an example. In the end, however, it is reasonableness that must win out - finding a point somewhere on the continuum of demands and counter-offers that isn't wholly agreeable to either party, but is a reasonable solution nevertheless.
The concept of reasonableness, and its decided victory over the merits and emotion, should not be a foreign concept to most litigants, simply given that reasonableness-seeking Centrists are probably the majority in America. But emotion and the desire to be righted when one has been wronged is often times an indomitable feeling. It is a feeling, however, that the judge must subdue if reasonableness is to win the day.