The Current Debt Crisis--What a Statesman Would Do

I don’t claim to be an expert on the current debt ceiling debate raging in the beltway and now being felt around the world. It is not unlike a hurricane that is brewing off shore with the possibility that a last minute change may spell disaster or relief, depending on several factors, including the unpredictability of chaos. What I do know is that the debt storm brewing, unlike a real hurricane, was man made. It therefore can be unmade. If it had a beginning, it will have an end. One can argue all day about who created it, when it was created, how to change it, or it’s final impact. All those questions, although interesting, won’t change the fact that the winds are starting to pick up outside and those winds are just the precursor of what might be a great storm that devastates many.

The discussions of some in Congress with the weight of rhetoric and ideology are not methods or tools of change, they are the gravitational centers of a polemic mass. They are not helpful as tools of compromise, but are the flags of politicians looking for the votes of the populous or the chance to make a foe look bad regardless of consequence. Populism is great if it is educated. An educated populous should, however, embrace change and the notion that stress and crisis are necessary for growth. You can paint yourself into a corner very quickly with the brush of ideology. When you are drawing lines, you ought look at what’s behind you.

Good decisions are not made for the masses when extreme polarity is at play. This is especially true when the environment is ever changing. When trying to solve an issue, you need to have as many options available as possible so you are not limited lest you cause the brewing storm to cause more damage.

When 9/11 occurred it was unexpected. There were perhaps signs, but the manner and way it occurred was unexpected. It caused overwhelming pain and destruction. Families and individuals were ripped apart in ways that will never completely heal. It also initially caused financial upheaval. The turmoil was unplanned, unnecessary and unwanted by rational human beings. One of the goals of the terrorists who planned and carried out the plot was to hurt us at our financial center or core. They failed. The economy was strong enough to take the impact and a taller building is rising. Though that storm was unplanned, we survived and rebuilt.

Now, ten years later, a financial storm of perhaps greater proportion may soon befall us if elected men and women do not step forward as statesmen, put aside politics and forego the stale and corrupt immovability of polemic ideology. Is it not ironic that this storm is our own creation? No one else caused this but ourselves. We will be responsible for the damage. Did we not elect the officials that are making the decisions? We apparently like the reality we created. We elect and we watch. It’s like Rome in a coliseum. The problem is, however, we will be the ones that get hurt. We are both the gladiator and the slave.

The other fascinating point is that we have been here before. Debt as a percentage of GDP has been higher in the United States. World War II saw higher debt when compared with GDP. However, the stakes now feel higher. For over a 140 years the United States has been the world’s biggest economy and has made the rules for the rest of the world when it comes to commerce. The rest of the world knows this. China knows this. Maybe we are tired of being number one. Being number one has advantages but so does being number two. Perhaps it is less stressful. Perhaps we want to draft off others in the future as they have done. That debate will inevitably arise more focused as China’s economy gains momentum and influence, and possibly overtakes the US in about 20 years. For now, we have a storm to attend to in D.C.

What is needed are people brave enough to see the future as one of possibility and growth. The keys or tools to solve the problem are also the keys of opportunity. These tools to work solutions are relatively simple but it will take calm and self disciplined people to either change course or prepare for the impact. I hope they start soon if they have not already. It may even storm for a while so remaining calm is even more necessary.

Here are some ideas: Place the leaders of the various factions into small groups. Put opposites in the same room. Bring in facilitators, mediators or peacemakers if necessary. Allow these many smaller groups to handle just one of the issues each. Allow them to hear each others positions informally and to actively listen i.e. “What I hear you saying is you don’t want to have to pay for something unless you can afford it.” “What you want is for people to have a job at a company that is not over taxed so it can hire.” etc. These small groups will hopefully build new personal relationships. Let them come up with creative solutions. People are real when they are one on one. They are not when they are 60 vs 225 vs 210 vs 100.

Next idea: Sometimes you have to sacrifice to finish a deal. Sometimes you have to make concessions to make a deal work. It is not perfect, but at least it allows for there to be momentum. If one side gives a little then perhaps the other side will as well. What’s the alternative? Civil discord or perhaps worse. Politics is by it’s nature a short term project. It yields little long term gain. It is thunder without the rain. Statesmanship, on the other hand, is long term and forward thinking. It knows, for the good of others, tough decisions are made for the future. It does not seek to gain another majority in a few months or to create more argument to justify itself. A fool speaks without meaning. A statesman speaks with authenticity and heart. In the next election perhaps we ought to elect statesmen, not fools. One of our best thinkers, Benjamin Franklin, offered this advise to his fellow statesmen on compromise: Be willing to sacrifice, not your principals, but your overwhelming urge to be right. It’s a republic if we can keep it.

Trust, open options, future looking, and the ability to concede when necessary to continue are the keys to the dilemma we face. The deal will not be done by having separate press conferences or by signing a pledge. It’s “We the People.” Just because you can tie yourself up, should you? What if you need those hands because an unexpected fire starts and you need to pour water on it? The deal will be done by true gentlemen and gentlewomen of intellect and heart placed in small groups across small tables. They will needs their hands in order to shake the hands of each other when the deal is finally done.

By the way, I have a new website at: www.intermountainmediationcenter.com
where you can view additional information about what I currently do.

Mediation and Walden Pond

I spent Thursday and Friday mediating E. coli cases involving Wendys and its supplier. About 35 attorneys, company representatives and 6 layers of insurance showed up in a confined area in Federal Court for the District of Utah. We settled three of the cases and still have two remaining. For our clients that are irreparably injured, it is by far the worst thing they have ever endured. For the insurance companies, producers and retailers of the tainted product, it seems to be more of a business decision. However, I did see in the face of one senior executive real concern for our clients. He appears to have what I call humanity.

Henry David Thoreau was a 27-year-old former schoolteacher when he went to live at Walden Pond in the summer of 1845. His friend Ralph Waldo Emerson, who had recently purchased 14 wooded acres of on the northwestern shore of Walden Pond, agreed to let the young writer conduct his "experiment in simplicity" there. Henry built a small cabin next to the large pond and spent a couple of years thinking about what was important. He sought balance. I suspect he took many deep breaths and listened to the silence.

Being in a place where there are over 35 lawyers trying to make a good decision is not a Walden experience. It is however, a necessary step to help seriously injured people. I suspect Thoreau spent a few stormy nights in his small one-room cabin. It allowed him to appreciate the open expanse of thought and the promise of renewal. Although I am disappointed not all of our cases settled, I am hopeful that as the main decision makers have now had time to step outside the small spaces that they occupied last week, they now have an opportunity to find perspective and return with a new expanse of thought to settle the storm that has occurred in the lives of our clients.

Conflict Resolved

I spent most of the my day yesterday in mediation. It was confidential so I can't discuss any of the specifics, but it was successful in its outcome. What I can say is that it was a case that had been litigated up until mediation for over two years. Both sides had risk. Both sides had strengths and weaknesses. In the end, both sides had to give a bit more than what they really wanted to. But also in the end, both sides had more say and control than what they would have if it had been given to a jury.

There are certain things you can do both as a client and an attorney to prepare for medition that will help in having a successful outcome. These ideas are by no means complete but are some thoughts from what has worked for me and my clients.

First things first, know your case. This doesn't mean your side only, it means try to understand your case from the other side as well. Obviously, there is a dispute or you wouldn't be here. Try to objectively discern if the otherside might have a valid point. Also, not all facts are critical at mediation. You may have lived with your case for a few years but trying to explain the details of the front door to your cabin that is 47 miles down a rutted dirt road may not be salient to this process. It's like the details of a book versus the same story in a two hour movie. I once took a screenwriting class that went over how to adapt a book to a movie. The instructor said the following: "Read the book carefully from cover to cover then put it down. Write out what you remember from it--the main points. If you can't remember all the details they were most likely not that important." So know which facts are critical and which are merely background.

I think it's also affective to research any comparable jury verdicts in your area to some degree. I feel this was probably more important to see what value is in your particular area a few years ago. Area distinctions are becoming less dramatic than they were fifteen years ago. The internet has made the world smaller. Just because I live in Utah or Oregon should I take less that a similar case that is in California or New York? So research cases from your area and beyond. See what's out there.

What are your alternatives to settlement? Will this be your last bite of the apple before litigation? Can you try again if it doesn't wotk out? Could another form of settlement be suggested such as arbitration? Timing is every thing. Some case take a while to become ripe. The right answer at the wrong time is still the wrong answer. Don't short circiut the process of getting to quick to mediation and don't short circuit the process once you are at the mediation or you will most likely take less than you would have otherwise. It is a dance that has several components. Patience still can be a virtue.

Another helpful process to go through with your clients is to explain to them how long and how expensive it will be to go to trial and what outcome is possible at trial. If they could settle today for $500,000, is it better or worse than going to trial a year down the road and spending and additional $50,000 with the amount on the table today at risk to potenetially get another $500,000? The answer may be yes or no but you need to honestly make an assessment.

When preparing both you and your client, make sure your are on the same page in most critical respects. You don't want an additional dispute to errupt during this most critical time of potential settlement at mediation. If you feel it coming on, politely ask the mediator to step outside and work through it until you reach an understanding with your client. Remember to listen to your client as they are the ones that have lived thrugh it.

It is also important ahead of time to explain the mechanics of the system (especially how a mediation session goes) so they are not surprised. Explain to them that the mediator is not the judge but someone that can hopefully facilitate a resolution. They are not there to tell you what to do. You and your cleint get to decide that together.

Like I said, this is by no means an exhaustive list. It is just a list of thoughts I have from spending my day in mediation that can hopefully better help in getting conflict resolved.

What We Hear

"The litigious spirit is more often found with ignorance than with knowledge of law." -Cicero

"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser--in fees, expenses and waste of time." - Abraham Lincoln

"The entire legal profession--lawyers, judges, law professors--has become so mesmerized with the stimulation of the courtroom that we tend to forget that we ought to be healers of conflicts. For many claims, trials by adversarial contests must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, and too inefficient for a truly civilized people." -Chief Justice Warren E. Burger

Don't get me wrong, litigation does have its place and time. Mediation is not always preferable to litigation. Litigation is a good place for those who won't listen and need to be held accountable. Further, through our adversarial system there is some degree of predictability through stare decisis or precedent which establishes some fariness. It also tends to level the playing field where a party may be unreasonable. This is why we have the black robes. My point is this: Litiagtion should be a last resort. Learn to listen.

Mediation is Wise

Several months ago I ran across a great article in the Wyoming Lawyer, called Negotiating With Native American Wisdom. I've never met the author, Joe Epstein, but I know literally and figuratively what he means by travelling the "red road." I recommend this article to anyone interested in mediation and the art of listening. Here's a link to the article: https://www.wyomingbar.org/bar_journal/article.html?id=109

A red road in Monument Valley, Utah--Navajoland within the four mountains

Welcome to my Blog

Bill said you must blog.  That was a year ago.  I've never been one to move fast into new technology.  I prefer holding a paper or a book to reading it online.  It means more if all of your senses are employed.  I am not a traditional lawyer.  I choose to be solo but also understand I'm connected.  I started out as a criminal defense attorney handling everything from shoplifting to murder.  I was a professor for a few years in the world of academia.  I now find myself knee deep in e-coli, a potentially deadly bacteria that comes from the intestines of animals.  But its not primarily the e-coli that harms or kills, actually it's the decisions that people of governments, corporations and other entities make that eventually domino and affect a father, a mother, a child, a grandmother.   The victims have names, jobs, feelings, goals, dreams, baggage, regrets, hopes and friends.  We are all connected.  They are all us.  They are all you.  

I play jazz drum professionally in the JD Moffat Trio and find improvization a key asset.  Being in the moment, riding the edge of the wave, conceptual blockbusting and finding ways to resolve rather than spar have always meant more to me.   I hope this blog will help someone.  I will endeavor to write and post articles that will contribute to the body of law, mediation and music.