Speeches

Chief Justice ThomasJ. Moyer
American Arbitration Association
Feb. 16, 2000

It is fitting that the American Arbitration Association is meeting today...the 249th birthday of James Madison, our nation’s fourth president. But he is best remembered for his achievements outside the White House. Madison’s leading role in the Constitutional Convention earned him the title "Father of the Constitution." He rejected that moniker…saying the Constitution was not "the off-spring of a single brain," but "the work of many heads and many hands."

A contribution to the stability and freedom of our nation that Madison could not escape…was his stewardship of the first ten amendments to the Constitution...the Bill of Rights. Madison’s intellect, vision and political forethought persuaded a reluctant congress to approve, and send to the states for ratification, articles protecting free speech, freedom of religion and other rights many take for granted today.

Before he made good to work for the addition to the Constitution of a Bill of Rights, Madison articulated his belief in the need to protect personal freedoms. In Federalist Paper 51, Madison wrote:

In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly reign, as in a state of nature where the weaker individual is not secured against the violence of the stronger."

The use of mediation and other forms of alternative dispute resolution derive from Madison’s belief in personal rights and responsibility. The ability of the majority to inflict its will on the minority has no role in mediation. No jury or judge selects a so-called winner or loser, and outside forces do not control the process. Its outcome is shaped by those engaged in the process, and is the ultimate forum for settling conflict through self-determination.

Court-sponsored mediation began modestly in Ohio. A few programs existed in the early 1980s, but it was not until my first term as Chief Justice that the Ohio Supreme Court created an office of dispute resolution to foster the growth of Alternative Dispute Resolution. Today there are more than 200 court-sponsored mediation programs in the state at all levels, from municipal to the Supreme Court, that represents a four-fold increase in the last three years. My personal goal is to establish mediation programs in all courts of general jurisdiction by 2005. We have enjoyed and assume we will continue to deserve and receive the support of the General Assembly in funding dispute resolution.

Conflicts between neighbors over noise, property boundaries or wayward pets can be resolved quickly by choosing negotiation or mediation services. Because dispute resolution produces a timely resolution to which all parties contribute, it can reduce the chance of violence and can promote positive relationships and greater satisfaction with outcomes.

As many of you know, litigators and in-house corporate counsel indicate a preference for mediation over binding arbitration. A survey conducted by the American Arbitration Association and the National Law Journal reveals that 88 percent of corporate counsel and nearly 70 percent of the litigators prefer mediation. They say it saves time and money, and that they prefer the mediation process to arbitration or litigation. It also can preserve a valuable business relationship.

A light in the tunnel—

Elementary, middle and high schools across Ohio have successfully implemented conflict management and dispute resolution programs to diffuse disputes and misunderstandings before violence erupts. Peer mediation and conflict management require students to take an active part in the process of settling differences by requiring them to assume responsibility for their disputes…one of life’s important lessons too often not taught at home and not to be found in popular culture.

Youthful disputants see that mediation works because they are part of the process of resolving the dispute.

Conflict management programs are now in place in more than 1200 of our primary and secondary schools. Some of the most successful efforts are here in Cleveland.

A statewide survey reveals that over 60 percent of the elementary schools using conflict management experienced a decrease in student fighting. Sixty-five percent report a reduction in the amount of time teachers spend resolving student conflicts.

In middle schools, teachers find conflict management has led to students being better able to resolve their conflicts on their own.

At the high school level…officials not only report a decline in fighting and fight-related suspensions, but say conflict management programs have improved students’ self-esteem and leadership skills.

Some Ohio schools are using mediation to reduce truancy, a leading indicator of school drop-out, and future criminal activity. Under a pilot program co-sponsored by the Supreme Court, mediation is scheduled between a child, parents and teachers after a student’s fifth unexcused absence. By bringing all parties to the table they are better able to find workable solutions to the root cause of the problem.

A new study of the Truancy Prevention Mediation Program shows it is a success. All participating school districts report a decline in absenteeism. The long-term value of school programs is that our young citizens are learning lifetime skills that will help them and all of society be less confrontational and even less violent.

The use of mediation is expanding across Ohio, and across the nation.

Throughout history compelling ideas have brought together independent entities committed to a common purpose. In 1997, the American Bar Association and the National Conference of Commissioners on Uniform State Laws merged their interest in promoting mediation by forming a committee that I am privileged to co-chair with Roberta Cooper Ramo, past president of the American Bar Association. For the past three years, a committee composed of academics and a couple of judges, has worked to develop a Uniform Mediation Act that could be the source of legislation or court-adopted rules in the several states.

There is a separate Drafting Committee upon which Jose Feliciano and Stanley Fisher represent the ABA and NCCUSL. Both Committees have met a number of times, and responded to many comments from interested entities and individuals. We have a draft that will be the subject of a meeting the last week of March at which we hope to produce a final draft that will be submitted to NCCUSL and the American Bar Association.

The Act will define important terms in the mediation lexicon. It will apply to all forms of mediation except disputes in conjunction with collective bargaining agreements, disputes between minors that are conducted under the auspices of a school, and pretrial conferences conducted by a judge who may make rulings on the subject matter of the mediation.

The Act would designate mediation communications that are subject to discovery or admissible in evidence and define conditions under which a disputant is privileged to disclose and prevent others from disclosing mediation communications. It would define conditions for waiver of the privilege and also provide prohibitions on the disclosure of mediation communications outside discovery and evidentiary proceedings.

And of course, there are exceptions to that privilege such as sessions of public policy mediation where there would be no expectation of confidentiality, or for threats made by a participant to inflict bodily harm or unlawful property damage. The confidentiality provisions have drawn the most comment from professionals and others concerned with the value confidentiality adds to the mediation of disputes.

We have not overlooked the desirability of providing guidelines to be followed to assure disputing parties of the impartiality of the mediator and the obligation of the mediator to disclose his or her qualifications if requested. Finally, the draft reiterates a procedure by which mediated settlement agreement may become a judgement of a court of general jurisdiction.

If we desire to promote and enhance the development of mediation in a society that desperately needs alternatives to a contentious and self-centered national psyche, the utility of a Uniform Mediation Act in furthering that goal is demonstrated in the simple question posed to me by a number of my counterparts in other states.

The question is, "How do I initiate dispute resolution programs in my state?" The adoption of a Model or Uniform Mediation Act is at least a partial answer to the question.

This work also could bring predictability for disputants seeking to conduct mediation across state lines. Currently there are more than 2000 federal and state laws and court rules regarding mediation. If more uniformity can be brought to these laws, then the mediation process will be more accessible to citizens and businesses.

The expansion of court-related mediation programs could some day lead to a change in the public’s perception of the judiciary. The current perception that courts are a venue of conflict will be replaced with the view that courts are places of agreement and consensus.

It is my hope that some day mediation ceases to be only a service, an alternative, but becomes a way of life that reduces the level of conflict in society. This can happen if more people know about the best attributes of mediation, such as listening to others, the empowerment of the individual, assuming some responsibility for the dispute, and the search for common ground. The framework for correcting many of society’s ills is contained in mediation.

There are signs this is already happening in the legal profession. Experts say there is evidence that mediation is leading some lawyers to be less confrontational even when they are not engaged in a formal mediation session. These attorneys are finding that once they are exposed to the process of intently listening to the other side’s views, and then seeking areas of agreement...they begin to use these skills in day-to-day professional practices.

If this trend continues…the intense level of conflict that has led citizens to lose confidence in the legal community…may reverse itself, leading to a return to the respected stature the profession enjoyed a generation ago.

The very nature of mediation reduces the emphasis on winning at all costs that has become pervasive in both the legal community and society in general.

Reducing conflict is one goal of school-based peer mediation. Supporters of such programs speculate that if children learn early in their lives that there are other ways to settle disagreements other than fighting or with guns...that these children are more likely to seek compromise and agreement when they become adults. Time will tell.

The true value of dispute resolution extends beyond our courtrooms, boardrooms and schoolrooms. It helps to remind our society of the concept of civility. By its very nature, it calls on people to talk and listen to one another, and then resolve their differences in a civilized manner. It is convincing evidence that there is an alternative to confrontation.

Again, I thank you for all you do to keep alive the spirit of our founders that caused persons such as James Madison to believe that men and women indeed do have the capacity to live civilly with one another.