Resolutely Solving Disputes
Thirty stories up in a downtown Portland law firm, no one seems to notice the spectacular views of the West Hills. Several of the people seated at the long conference table exchange nervous glances. The light pouring in from the sun-drenched morning does nothing to ease the four years of pain, distrust and accusations this group has experienced.
“The right solution at the wrong time is the wrong solution.”
Nine people are gathered, including five plaintiffs who have sued their former employer for age discrimination and the legal teams for both sides. Already this group has been through two failed settlement conferences that left all parties feeling slighted and bruised. Still, everyone realizes that emotional and financial toll will only escalate if this case goes to trial — a process that could drag on seven years or more. So they have come to try an alternative: dispute resolution.
They are pinning their hopes on mediator Susan M. Hammer JD’76, a former partner at Stoel Rives who spent 20 years at the firm before leaving in 1998 to pursue mediation full time. She has pored over summary judgments and met with the lawyers and plaintiffs. Her goal is to have a settlement by day’s end.
What today is about, Hammer says, is determining the interests and risks of both parties. She goes on to explain that at some point each side will feel she is working for the opposition, pointing out the weakest part of their argument, highlighting details that are unfavorable to their case — details a jury would likely hear in court.
“Mediation is a combination of law, procedure, psychology and negotiation theory,” Hammer explained. “There’s a concept called ‘reactive devaluation.’ If you and I are adversaries and you propose a solution, maybe I can’t even think straight about whether it’s good for me. I think if it’s good for you, it can’t be good for me.”
But the mediator, who has established a basic level of trust with each side by talking honestly about the pros and cons of the case, can sometimes propose the same idea and make it fly. The most satisfying outcome for Hammer, though, is not proposing a solution that she has devised. Rather, she wants to see two sides that previously could
not find a way out of legal conflict, that have spent years locked in bitter battle, find their own common ground.
“It’s wonderful when they start getting collaborative, when there’s actual brainstorming going on: ‘If we do this, maybe you could do this.’ You’ve broken through ‘I’m right, you’re wrong,’ to ‘How can we solve this together?’” said Hammer. “If people come up with their own solution, they’re generally much happier with it. For me to be the Energizer Bunny® who’s just popping out solutions and having them rejected is not productive.”
Most legal disputes never make it to court. More than 90 percent either settle or are dismissed. Of those that are settled, the negotiations are nearly always handled by the lawyers of the plaintiff and the defendant. Sometimes, though, the attorneys just cannot make it work. And every hour they spend trying increases the financial and emotional toll on their clients.
According to Hammer, these are the times when a mediator can achieve what the lawyers cannot. In the voluntary process of dispute resolution, the parties agree on a mediator, whose fee is typically split by those involved. A lawsuit does not have to precede mediation. In fact, in about 25 percent of Hammer’s cases, no lawsuit has been filed, though usually the parties have legal representation.
The process is amazingly successful. Since 1989, approximately 75 percent of the community
disputes reported to the Oregon Dispute Resolution Commission — from small business and consumer conflicts to family and landlord-tenant disagreements — have been resolved.
Hammer herself came early to dispute resolution and has devoted much of the past 15 years to expanding its use in Oregon. As an officer of the Multnomah County Bar, she was instrumental in creating a dispute resolution section — before even the Oregon State Bar had one. In 1987, under her direction as its first female president, the Multnomah Bar began offering continuing education programs in mediation.
In addition to having her own practice, Hammer mentors law students and frequently speaks to attorney and business groups about the benefits of mediation. She is a fellow in the International Academy of Mediators and a trustee for Willamette University, which includes the College of Law’s Center for Dispute Resolution.
“Susan did an enormous amount of work to raise awareness at Stoel Rives,” said former colleague Bill McAllister JD’62. “She prepared a manual [on dispute resolution] and had an all-hands meeting to go through it. The amount of work she put in was monumental, and none of it was compensated. In today’s world, that’s quite a labor of love.”
“In the same way Henry Kissinger probably got more out of peace negotiations than he did out of sword rattling, Susan gets more satisfaction out of resolving conflict than putting people through the grueling experience of the courtroom,” added friend and Multnomah County Judge Kristen LaMar.
Negotiating a peaceful settlement, though, is not always possible. “The right solution at the wrong time is the wrong solution,” Hammer said. “At the end of the day, in order for me to sleep well, I have to know I did everything that I possibly could to help the clients find common ground,” she said. “If I’ve done that, I’m pretty comfortable walking away.”
Edited excerpts of this article have been printed with the permission of Oregon Business magazine. The full article can be found in the November 2002 issue of Oregon Business.