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Mediation and Politics
New York Law Journal
Editor's Note: The following is an edited version of remarks by Mario M. Cuomo to the College of Commercial Arbitrators at Skadden, Arps, Slate, Meaher & Flom, on Oct. 27.
For years, both in and out of public service, I've worked constantly with the law at the most detailed and the most comprehensive levels.
During the first half of my career as a practicing lawyer and law school teacher, the adversarial process and trying cases were technically my job, but practically, trying cases was an obsession.
In the early years of practicing law, perhaps because of youthful hubris, I seized every chance I could get to try cases. I thought of mediation as a device to be assiduously avoided.
I enjoyed the struggle, the competitiveness, the thrill of victory and the agony of defeatthe court as the coliseum, and my opponent as the lion.
That intellectual kind of combat had a primal attraction for me and for many of us lawyers and politicians, it still does.
Over the years, however, as I've grown in experience I've been able to overcome a number of different primal instincts: an obsession with trying cases is one of them.
I've concluded that litigation can be a kind of failure. After all the trial is, in a way, really nothing more than a refined substitute for the rock, the club, the spear, the gunand even the bomb: all concessions to our inadequacy, our imperfection, and our inability to resolve our differences in a more intelligent way.
And understanding that, it has gradually become clearer and clearer to me that mediation and other alternate dispute devices like arbitration, are very often the best answer by many measures: they are more practical, they are usually less expensive, faster, easier, more private, and fairer to the client.
For attorneys who agree with that assessment, trials are regarded as the last resort.
I'm sure that's what the trustee in the Madoff bankruptcy and most of the attorneys representing Madoff victims feel.
And we know that Abraham Lincoln, a pretty good country lawyer, felt that way as well.
He instructed lawyers to "discourage litigation." He said, "Persuade your neighbors to compromise whenever you can…as a peacemaker, the lawyer has a superior opportunity to be a good man." (And, I'm sure Lincoln would say today, "or a good woman.") "And there will still be business enough to make a good living."
Mediation is also "good" in a larger sense, far beyond the good of your client.
To individuals like myself and others who have had the opportunity to be in the political arena for a while where laws are conceived and implemented and all the problems of society are weighed and balanced, mediation is well-recognized as representing a spirit and an intelligence that we need badly as a nation now.
I think it's apparent to most observers of our wounded political system that our nation is crippled at the momentnot because the federal government and some state and municipal governments are virtually, or even literally, bankrupt; and not because our democratic system is rotting; and not because we lack intelligent leaders and representatives, but because we have been hobbled and occasionally crippled, by a clash of rigid, inflexible ideologists and ideologues.
We appear to have lost intelligent suppleness and the ability to deal with all of our tragic mismatches of resources and opportunities, needs and burdens.
And the conflicts between owners and workers, cities and suburbs, the haves and have nots, the insured and the uninsured: all imperfections that make our democracy less strong than it ought to be.
And so as a lawyer, I have concluded that the best way to resolve disputesindividual, corporate, marital and socialis to mediate or use some other alternate devices.
There is abundant proof that is the best way to govern as well.
Just look back to the late 90s. The so-called "Clinton Years."
The president was a Democrat, the Congress was mostly Republican, but both sides were willing to mediate and collaborate.
What did it produce? Twenty-two million new jobs, a balanced budget, more millionaires than ever, an upwardly mobile middle-class, fewer poor people, a projected budget surplus of five trillion dollars…and peace.
So, mediation and collaboration work.
But sometimes we forget how to do it, and that's what is hurting the country now.
I think we lawyers can help.
We can be motivators reminding ourselves and pushing the politicians to mediate and collaborate.
If we do it well and consistently in our legal practices, and mediation and other collaborative devices become prevalent enough in the world of law, which is the world you and I live in, then the use of these devices may flow beyond the confines of the court and the law firm and reach even the Halls of Congress and the Capitol, where we seem to be having so much trouble reconciling our conflicting interests.
After all, what is our mission as lawyers?
Certainly it allows us to provide for ourselves and our families the sustenance to survive and prosper in our society: that's a proper aspiration.
And certainly we have a duty to help our clients every way we can; that's our basic charge as lawyers.
But we know we have a broader mission as well.
Our unique skills and training as lawyers should be used not only to advance our own purposes, or even the purposes of our clients, but also to contribute to the greater good of the larger society.
That sentiment has been written 10,000 times since Cicero successfully argued it before a Roman court 2,000 years ago, and it has been lived dramatically by people like many of you.
Let me conclude with one final, fundamental observation.
Am I wrong?
At the moment isn't America a bit confused, concerned and searching for something more and better?
Despite all the wealth and grandness that is so apparent at the upper levels of our population, insinuating itself into our nation's consciousness is a feeling that something's missing.
It was described cogently I think in a nice line in a memorable song that was a commentary on our culture, in the movie The Graduate. "Where have you gone Joe Di Maggio, a nation turns its lonely eyes to you?"
"What's that you say Mrs. Robinson? Joltin' Joe has died and gone away."
No more Joe Di Maggio. They killed Jack Kennedy and Martin Luther King Jr. Then another Kennedy.
There's no hero, no heroine, no great cause, no soaring ideology.
We are riddled with political answers that seem too shallow, too short-sighted, too harsh, too explosive. We are tempted to see ourselves as a nation of almost 320 million disassociated individuals, struggling for survival and dominance in a dog-eat-dog world, instead of as a fully integrated society, interconnected, interdependent, growing stronger together.
We need something real to believe in. To hold onto! Something deeper, stronger, grander, that can help us deal with our problems by making us better than we are, instead of meaner. That can lift our aspirations instead of lowering them.
Something sweeter than the taste of a political victory.
It would take more than the time we have now, and perhaps more than the wisdom that resides here today, to find and to describe the details of a solution to this profound discomfort.
But there is one thing we lawyers know will help relieve the uncertainty that troubles us, "Our Lady of the Law."
Our 200 year old legacy of law and justice is a magnificent monument to the best we have been able to accomplish as a people. We must not allow it to be torn down, or even defaced by a political system whose claim to morality is the latest urge of the American peoplehowever distracted, however misled the American people may be on occasion.
We must resist the growing temptation that has gradually, and occasionally blatantly, converted our U.S. Supreme Court into a place where politics replace strict adherence to the law.
For more than 200 years "Our Lady of the Law" and lawyers who respect Her, have proven stronger than the sins of Her acolytes and have made us better than we would have been without Her.
Someone must lend their efforts and supply some leadership.
Who will supply it?
If not, the lawyers and other professionals, then who?
If not now, then when?
Mario M. Cuomo, the former governor of the State of New York, is of counsel to Willkie Farr & Gallagher.