Owlnotes.com

I am an arbitrator and mediator at JAMS. JAMS is a national company that specializes in arbitrating and mediating large dollar commercial disputes of all kinds. We also mediate serious accident cases, land use disputes and many other major cases.

As an arbitrator, I hear testimony, review evidence and briefs and decide a case much like a trial judge. Arbitration is more likely to be an all or nothing outcome. In mediation, everyone hopes for a compromise to avoid the risk and expense of a trial or arbitration. As a mediator, I try to help the parties find a reasonable settlement. In mediation, both sides recognize that if they proceed to trial or arbitration, they could lose or win, it will be expensive, it will take time, and the result may be economically catastrophic. There are a lot of reasons for compromising.

Yes. If you begin a lawsuit in a large commercial case, you end up spending at least a year or two in various legal proceedings, with an uncertain outcome. While that is going on, besides the substantial expense to the parties involved, there is also tension and concern over how it might come out. It is far better to resolve the problem in meditation. I would say that well over 90 percent of such disputes are mediated. Arbitration is a much less common path, and only occurs when the parties cannot find any way to agree, and finally turn the problem over to arbitration. Most of the cases we mediate are pending court cases. They come in to see if the parties can settle. Then, if we cannot, they let a trial or arbitration determine the outcome.

I cover pretty much everything, including intellectual property, like copyright or trademark disputes; insurance disputes of all kinds; commercial disputes, where a party contends a contract has been breached or broken; employment cases, such as people who claim that they were wrongfully terminated, harassed or discriminated against on the job, disputes about overtime payment; and class action lawsuits, which address situations with a large number of people who were all subjected to the same challenged practice. Almost every possible business or financial dispute can be the subject of a mediation or arbitration.

I was in college at the University of Minnesota in Minneapolis, majoring in political science, but unsure of what I was going to do with my degree. About my junior year of college, I thought about going to law school. No one in my family had ever been a lawyer or even gone to college. I had wonderful parents and a wonderful extended family, but it was very much a working-class family. My parents were eager to have me in college and encouraged me in every way. It just so happened that my dad knew a lawyer, so I had lunch with him and soon applied to law school. That turned out to be a good decision for me, because, although I was an adequate student in college, I turned out to be an exceptionally good student in law school. It was something that suited my particular abilities.

I enjoyed the intellectual challenge of it. I liked the idea of working with people and trying to help them solve their problems, which is essentially what lawyers do.

I don't know if I would say that. Talking with him confirmed in my mind that going to law school was what I should do. I did not know if it was the right career for me, but I knew that I should start law school and find out. I went to the University of Minnesota Law School. It turned out that I liked it very much from the beginning.

I had a job offer from the top law firm in Minnesota, and I was virtually certain that I was going to accept it. The law school was anxious to have me interview with firms from other areas that would send lawyers to recruit Minnesota's graduates. One day, the dean in charge of recruiting talked me into signing up for two California law firms. Both of those firms invited me to come to California for more interviews. I left Minneapolis shortly after Thanksgiving and returned a week later. One of the firms offered me a job. It was very cold in Minnesota. It was very nice in California. I have been here ever since.

First, I was an attorney for a few weeks with a firm when I passed the bar. They had an arrangement with the United States Attorney in the Central District of California, headquartered in Los Angeles, where people like me would become Assistant United States Attorneys for a few years and then return to the law practice. What that meant was that I was conducting an incredible number of trials as a federal prosecutor. So when I came back to the law firm, I had more trial experience than most lawyers ever get, and I was only 28 years old. Then I practiced in a business firm for almost eight years. My total time in law practice was a little over ten and a half years. In California, to be a judge, you had to have practiced law for at least ten years. I was barely eligible when I was appointed a Superior Court judge. Since I had been in court so much as a lawyer, I certainly understood what a judge did. So I did not find the transition particularly difficult.

I actually spent about four years as a trial court judge (called the Superior Court in California). Then I became a justice on the Court of Appeal for 16 years. My job then was to try to decide if the matter was correctly determined in the trial court. That work was more intellecutal than my work as a trial judge in the Superior Court. I had been urged for some years to go into the arbitration and mediation practice, but I always resisted because I enjoyed being a judge and a justice. I decided after 20 years as a jurist that it was time to do something different. At age 56, I was still very young; younger than some people are when they become judges. I had time for another career. I joined my current company and actually became one of its owners. It is a very enjoyable second career.

In the job of arbitrator and mediator, I receive an amazing quantity of legal briefs and documents to review on a regular basis. Most often, these are delivered to my office, but they are frequently delivered to my home. I have an obligation to read and study those. I check my email two or three times a day. Most of my day is spent working with the lawyers and their clients that are involved in the mediations and arbitrations on my calendar. In mediation, I talk with each side separately and then we typically sit down together in a large room and talk to each other. Each side explains its position. Thereafter, I continue to meet with the parties separately throughout the day and encourage them to make offers to settle. Hopefully by the end of the day, we have agreed on some terms. Most often, there is a payment made by one or more parties to other parties. Sometimes, if the settlement is for a large amount, a payment has to be made over time. All those things are talked about and resolved. Arbitrations are a lot like trials, except that they are held in a conference room instead of a courtroom. An arbitrator hears testimony and studies evidence as it is presented. Then the arbitrator hears arguments from the attorneys, who most often file briefs arguing their respective positions. Ultimately, I write a decision and send it to them.

I have always tended to work long hours, maybe because I have always enjoyed my work. After 40 years as a lawyer and jurist, I must say that I still greatly enjoy lawyers and their clients, and I look forward to working with them every day. In that respect, serving as a mediator and arbitrator is similar to my work as a jurist.

I set my own hours in this job, but I have a case manager who takes care of my calendar and numerous administrative tasks. Most cases are set for 9:00 or 10:00 a.m., and last for at least a full day. I frequently have conference calls. We set those for whenever there is a gap in the workday. There are frequent hearings for legal motions that last for an hour or two, or sometimes longer. Typically, for those hearings, there is a substantial amount of material to read in advance.

Oh, yes. One of the great things about my professional career is that I never know what the next case is going to be about. The variety is infinite. Over the years as a lawyer, judge and justice, and now as a mediator and arbitrator, I have seen a lot. I think that I have seen everything until the next case, and then there is something new. The possibilities for legal disputes are as varied as the entire human experience.

That becomes a temperament thing. It is not difficult for me, because I do not get wrapped up in the arguing. Most of the time, the arguing is done in a very polite manner. People take their turns presenting their arguments, but it is not arguing in the sense that people are in a fighting disagreement. Once in awhile, people get angry or lose their temper, but it does not affect me, because I do not lose my temper. I understand that as part of the process. If you had a temperament where you got wrapped up in that kind of thing, then the job could affect you more.

Most of time my services are charged at my daily rate, but I also have an hourly rate for shorter matters. Currently, my daily rate is $6,500 for a day and $4,000 for a half-day. We encourage people to sign up for the day because often when they sign up for a half-day, they end up taking longer. I charge an hourly rate of $600 per hour for reading, preparing a written decision, and shorter matters. Of course, part of that goes to the company and part of that goes to me. We have a staff, including a case manager and case coordinator, because there is a great deal of work involved in setting up cases, billing and other administrative tasks.

Sometimes I work five or five and a half days. Sometimes I only work three or four days. There are different tasks. I only actually meet with people about three or four days a week. The rest of the time I am busy with reading, writing decisions, doing research, conference calls, and the like. Mediations often last more than one day, and they can go into the evening. I think that I work very hard, but I can also schedule vacations. I try to do that.

Many times when I come home late or work on a Saturday, I feel really bad because I miss being home with my family. However, I also need to respect the needs of the lawyers and clients, so I cannot be too concerned if we have not finished at five o'clock. We might go to eight or ten or even later. I try to make up for it by taking some extra vacations and being available to my family whenever I have an open day.

Not really. Some of the decisions I have made as a judge may have made people angry, but they are often people who are somewhat disturbed to begin with. There have been maybe three threats in my whole career, but not anything that was ever in any way dangerous. It was more of an expression of people being upset because they did not prevail.

I think that it may have happened. But I cannot think of any cases right now, because I always try to make the best decision I can based on the information available. I suppose that if I were to go back and look at every decision now, and have the knowledge of subsequent events, there would probably be decisions that should change. The process can never be perfect; I can never make a "perfect" decision in every case, every time. I can only do my very best. For some judges this is hard, because they agonize over the decision and then when they finally make it, they agonize over whether it was the right decision. I do not really do that. I make what I believe is the right decision, and I go on to the next matter without losing sleep over it.

I think what is really satisfying is when I mediate a case and we finally all agree on a settlement, because a pending lawsuit is a very great emotional and financial burden on the people involved. What I have learned is that if we can finally agree on something, even though one side is paying more than they wanted to, and the other side is receiving less than they hoped, there is a great sense of relief and joy over getting this out of their life on terms that they can live with. The expense and stress of continuing with the fight is over. Also, I have always viewed it as a great honor to be permitted first to represent a client in my career as a lawyer, then to be in a position where I was deciding cases as a judge and justice, and now to be selected by the parties to mediate or arbitrate their dispute.

One thing that is totally different now is that emails are important evidence in so many business, commercial, and employment disputes. Now, so much information is communicated by email that used to be communicated by telephone or meetings, with no exact record. Also, there are many commercial transactions on the Internet that can lead to disputes. There are copyright issues, as well, with music and film. Legal research used to involve reading appellate cases and treatises. Now it is almost always done on the Internet. The Internet has changed the world a lot. There is so much more information easily available on the Internet today than ever even existed in the world when I was a lawyer or judge.

No, not for background research because it is up to the lawyers to present the evidence. The judge does not look at information outside of what the lawyers present. However, for researching the law, the Internet is the tool we all use. Lawyers and judges used to maintain large libraries. Now more legal research material than you could ever put in one library is available electronically over the Internet. Research that used to take days can now be done quickly and more thoroughly than was formerly possible with just books.

If they want to consider law, they should first like people and the challenge of resolving problems. Then if they want to prepare themselves, I believe an education focused on reading and writing is so important. I am sure that in my lifetime I have read thousands of books. I try to keep myself informed in so many areas so that I can be prepared for thinking through all kinds of problems. Finally, it is best for a judge to be even-tempered. I think it helps lawyers as well because people are going to disagree with you; people are going to think that what you are advocating for should not be what occurs. In that sense it is like politics. There is no need for anger merely because people disagree with you. A good lawyer understands that. Also, the ability to write is very important, because you must be able to express yourself well in writing. Writing can be learned. Reading makes a person a better writer because it expands your vocabulary and knowledge.

I think that temperament is probably learned from your parents. My parents, especially my mother, were calm in any crisis. However, I am fortunate to have always been a reader and intellectually curious about so many subjects. I think this has helped my understanding of legal disputes.

No, it really does not make any difference what state you select for law school, because the bar exam is largely similar in every state. California grades the bar exam in a harder way than most states. In that sense, the California bar is more difficult to pass. But still, most people pass it the first time, and, if you do not pass, you can retake it in six months. There are many very fine people who became excellent lawyers and judges even though they did not pass the first time.

I think doing the best you can in law school and projecting self-confidence in dealing with others are very important. People are more comfortable with a lawyer who seems confident. Every law school has produced its share of excellent lawyers. It is sometimes helpful in getting your first job to come from one of the handful of truly prestigious law schools. Sometimes it is helpful to have been identified as a high-ranking student by having been on the Law Review, which is a prestigious student publication at each school. After you get that first job though, it is your performance that matters. It is much more about the person's performance than where they went to school.