Best Practices for Judges and ALJs to Ensure Adequacey of the Record

If you attended the 2011 annual conferences of either the National Association of Hearing Officials (NAHO) or the National Association of Administrative Law Judiciary (NAALJ), or ever attended the Fair Hearing Course of the National Judicial College, you know that an issue ALJs and arbitrators regularly wrestle with is whether and how vigilantly to ensure the creation of an adequate record. In a nutshell, "it depends," as we lawyers and neutrals all like to say.  As I've discussed elsewhere, a neutral generally will leave it to counsel to develop the record if the parties are represented, and there will be a greater obligation for the decision maker to step in if the parties are unrepresented, and/or if it is a non-adversarial proceeding involving substantial rights such as to income or licensing.  

Interestingly, the debate has finally extended to--or been formally recognized to extend to--the the judicial Courts as well.  In Turner v. Rogers, No. 10-10, 564 U.S. ___ (June 20, 2011), the U.S. Supreme Court concluded that judges can and must intervene

A Pressured Judiciary--Fact of Life and Cause for Alarm?

As a neutral decision maker of many years, I am always intrigued by the pressures that can be brought to bear on the process, and how judges or decision makers handle that pressure.  When I was a hearing examiner with the New Mexico Public Employee Labor Relations Board both the Director and I would periodically receive communication from the then-Governor's Chief of Staff, urging one resolution or another as "appropriate."  I had also occasionally received calls from or at the behest of a union president who had recommended me to the Board, seeking some particular outcome or action.  These and similar moments inevitably create some tension, but in my experience ALJs are generally able to sidestep the tension.

Because of this background, though, I have both sympathy and a healthy dose of "so what's new" for state court judges who find themselves pressured by an angry electorate.  You may recall, in 2010, three Iowa Supreme Court Justices lost their seats during retention elections in response to Court having earlier ruled that an Iowa statute limiting marriage to one man and one woman violated the State's Equal Protection Clause. It is

Difficult Questions in Mediation and Conflict Coaching

As a mediator and conflict coach in New Mexico, I am often confronted with how to question my clients so as to best explore an issue or dispute “trigger.” 

Conflict coach Woody Mosten frames it as getting to the “dangerous questions.”  He calls them dangerous because they require lots of honesty, sensitivity, and a willingness to work through issues.  They also require that you have already built up sufficient trust

Neuroscience, Emotions and Conflict Resolution

As a mediator in New Mexico, I strive to keep apprised of current literature and emergent theories in the mediation field.  One exciting trend is the rise of growing understanding of the importance in neuroscience and emotions in the field of mediation.  These trends are highlighted in the Summer 2011 ACResolution Quarterly Magazine, in a number of excellent articles I'd like to summarize here.

Court Abused Contempt Powers in Crowd Control

As an arbitrator and hearing officer/ALJ in New Mexico, I am occasionally confronted with the issue of proper use of contempt and contempt-like powers.  I have from time to time been frustrated with the arbitrator and hearing examiner's relative lack of powers to compel compliance.  However, reading a recent New Mexico court decision, it occurred to me without such powers we are also insulated from their potential abuse in heated situations. 

On Perceptions of Justice

As a professional "neutral" (mediator and arbitrator) in New Mexico, I am keenly interested in due process, fair hearings and equal access to justice.  In 2008, the ABA Judicial Division Lawyers conference began a multi-year "Perceptions of Justice" (POJ) project to address concerns over public perceptions as to how the judicial system handles race and ethnicity, and its first phase has now completed. This blog post discusses the recommendations, findings and observations of six separate "town hall meetings" held across the nation from February 2009 to February 2011, as part of Phase 1.

Great Quotes on Writing from the Writing Greats

I am an arbitrator, mediator, fact-finder and ALJ/hearing examiner in New Mexico, and I spend a sizable portion of my work day writing.  It is both a labor of love, and a difficult task which I sometimes dread and with which I always struggle. That is because, although I love writing "right"--meaning I love the feeling of accomplishment and pride of looking upon a well turned out produce--it is hard work getting there.  Perhaps many of you feel the same.  Haven't you had the feeling where you're completely, psychically "done" after your outline, after figuring out where you need/want to go and how to get there? Unfortunately, our work is only begun at that point.  

On the positive side, however, the literary greats are all in general agreement that it is a difficult task, even for them.  As Mark Twain observed, "[t]he supreme function of language is to convey ideas and emotions."  Four characteristics necessary to meet this function

The Three Rs of an ALJ--The Record, the 'Rriting, and the Remedy

In administrative law, there are three basic points of focus for the Administrative Law Judge (ALJ) or hearing official to consider, in fulfilling his or her role of conducting a hearing and rendering a decision.  I'll call these "the Three Rs:"  the Record, the "'Riting" and the Remedy.

In conducting the hearing, the ALJ must consider the extent and nature of the record to be made.  In issuing his or her decision (or recommendations) the ALJ must consider the relevant standard and audience of the written decision, and what is the appropriate remedy in a given case.  In many cases, these considerations will depend on the relevant law, or the culture or practice within the agency.  The following also addresses a number of additional questions that will frequently arise in creating the record, writing the award or crafting a remedy. 

ADR Terms, Theories and Concepts - A Quick Primer

The field of Alternative Dispute Resolution (ADR), which has grown dramatically in the last several decades, can be a rather crowded and confusing one. It is marked by a dizzying array of terms and theories, and styles and techniques, all hotly debated as to both their specific meaning and their relative value or "authenticity." Moreover, even when practitioners discuss and debate ADR issues amongst themselves they are not always clear on the definitions or theories they are relying on. Accordingly, clients and new mediators may be well served by the following "basic primer" of terminology and theory, laid out in alphabetic order.

Identity-Based Conflict

As a New Mexico arbitrator and mediator, I see a lot of conflict that arises from a variety of sources, and I also work to keep up with new (and old but shifting) theories of conflict. I recently had the pleasure of attending a teleseminar by Maria Simpson, Ph.D.," discussing identity-based conflict," as opposed to resource-based conflict, as a "less well-understood" but very significant dynamic of conflict. What she teaches can add a lot to our understanding of the sources of and effective responses to conflict.

NM Medical Review Commission - Stats

Recently I wrote about the New Mexico Medical Malpractice Act and the N.M. Medical Review Commission generally.  As a Panelist for the Commission and a mediator/arbitrator/ALJ, I believe medical malpractice cases should have a high potential for mediation or other alternative dispute resolution (ADR) process.  I also strongly suspect that ADR could be used more effectively and efficiently than litigation to resolve many of these disputes, which Acting Commission Director Michael Rueckhaus describes as "some of the most complex and time-consuming cases that are filed in court."

To appreciate the complexity and contention of these cases, it is illuminating to examine the annual statistics reported in the 2010 Annual Report (June 28, 2010) concerning what happens to medical malpractice claims after they have been heard and voted on by the Commission. 

Arbitration in NM not in Line with US Supreme Court Decisions

In March of 2011, I wrote about a number of recent and interesting SCOTUS decisions concerning arbitration, including Rent-a-Center, West, Inc. v. Jackson, 130 S.Ct. 2772 (2010), and Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S.Ct. 1758 (2010).  As I wrote in March, "[i]n the last few years, the legitimacy and reach of arbitration and arbitration clauses have been considerably expanded by the U.S. Supreme Court," with these and other cases.  Thereafter, in April, the Court issued an even more striking arbitration related decision, AT&T Mobility LLC v. Concepcion, No. 09-893 (Apr. 27, 2011), which held that California law declaring unconscionable the ban on class-wide arbitration is preempted by the  Federal Arbitration Act.

However, in a decision just published in the New Mexico Bar Bulletin this month--but dated April 8, 2011, before the date of Concepcion--the New Mexico Court of Appeals came to a different conclusion.  See Felts v. CLK Management, 2011-NMCA-062, cert. granted.  It turns out the State Court of Appeals hadn't gotten the memo on the direction of prior SCOTUS drift à la arbitration.  Then again, neither has the NLRB or California, by some accounts.

NM Medical Review Commission - Overview

In the summer of 2010, I signed up and began to regularly appear as a panelist for the New Mexico Medical Review Commission, pursuant to the New Mexico Medical Malpractice Act, NMSA §§41-5-1 et seq.  (eff. Mar. 1, 1976).  Although a voluntary engagement, I have found it enriching:  I practice my general hearing examiner skills, meet some really neat, knowledgeable doctors and lawyers; get all the coffee I want late at night; and have also learned a lot about medical malpractice generally, which I would eventually like to incorporate into my mediation practice.  This blog will discuss the overall structure and purpose of the Medical Malpractice Act and the Commission, in preparation for a later blog on Commission case statistics.

Judicial and Public Servant Ethics in NM

As a professional "neutral" (arbitrator, mediator and ALJ) in New Mexico, I am always alert to ethical issues, and public perceptions of neutrals and "justice" generally in my community.  As many know, New Mexico has suffered for several years under charges related to the political and corruption financial misconduct of various elected officials and public officers.  Unfortunately, the reputation of her judiciary has also taken a hit in the last year.  It is good, however, to see the State Supreme Court take a strong stand for the Code of Judicial Conduct of late, in two of the following cases, and to make a decisive ruling against a non-judicial public officer in the final case.

Employee Deemed Constructively Discharged After Successful Mediation

In a recent employment law case, the New Mexico Court of Appeals affirmed a jury verdict awarding an NMSU employee almost $125,000 in damages for retaliation and constructive discharge claims. The decision was largely unremarkable in its analysis and discussion:  that actions occurring before the statute of limitations can be considered under the continuing violation doctrine; and that the sufficiency of evidence is a high standard of review under which the appellate courts will not substitute their judgment for that of the fact-finder.

Far more intriguing to me, however, what was left unsaid in the decision:  how the Court came to conclude that an employee was constructively discharged in spite of obtaining an apparently successful and agreeable settlement through mediation that altered the original, offenses conditions of employment.

How a Mediator Can Help in Foreclosure - More Thoughts

I've written in a previous blog about the role and utility of mediation in foreclosure matters.  Here are a couple of additional tips and pointers raised by participants in a discussion group devoted to foreclosure mediation.

In the group, like in my prior blog post, we discuss the effectiveness and value of mediation at all.  One practitioner weighed in with the view that even though such "mediation" is really more like facilitation of the loan modification, short sale etc. process, real value can still be provided to the parties.

What are the Essential Qualities of a Good Mediator?

As a professional mediator in Albuquerque, I like others always strive for personal excellence, and continued professional development.  This blog discusses the essential qualities of a good mediator, as identified in the Model Standards and by practitioners.

Efficient Use of Judicial Resources During the Financial Crisis

"Courts are available to all potential litigants in almost the same way the common is available to all farmers. Just as the villagers must be able to afford livestock before using the common, American litigants must be able to afford a lawyer before they can go to court.  Once, however, this precondition is met, litigants take as much of a court's goods and services as they want when their turn comes up.  In most places, of course, their turn doesn't come up often because of the length of this queue."

                  -- Richard Neely, Why Courts Don't Work, 172 (McGraw-Hill 1982).

On this cheery note, "10 experts" in the June 2011 issue of the ABA Journal submit their ideas on how  to "sustain justice," and "tell how courts can do more with less."  The unified theme running between these and many other popular articles today is the recognition that the financial crisis is not a passing one but instead represents a "new normal," like I have written elsewhere.  As such, it is imperative that courts, like everyone else, adapt to these new conditions.  The authors discussed here pose some great suggestions, while acknowledging the financial crisis is not unique to the courts but is one which  every person and institution are subject today.

Mediating Neighborhood Disputes

Neighborhood and property associations are places ripe for internal and external strife, in light of their sheer numbers; the frequent comprehensiveness of their rules and regulations; the intensely personal nature of hearth and hope.  At the same time, neighborhood disputes do not lend themselves to litigation, for the many of the same reasons.  Accordingly, this blog post discusses why neighborhood and property associations should strongly consider mediation to resolve their various internal and external disputes.

Warner v. Calvert & NM Mediation Procedures Act

The New Mexico Court of Appeals has recently issued the first reported decision applying the New Mexico Mediation Procedures Act,  NMSA §§ 44-7B-1 et seq.*  Warner v. Calvert, et al., 2011-NMCA-028, cert. not applied for.  The Court concluded that a non-party participant to a mediation could be admitted as an expert in a subsequent trail, after mediation fell through, although the non-party participant's valuation report could not be admitted .

The Modern Method of Overturning Precedent

In the May 2011 issue of the ABA Journal, Richard Brust comments on the U.S. Supreme Court's emergent "stealth" method of overturning precedent.

2011 a Big Year in NM for ALJs and Hearing Examiners

2011 is shaping up to be quite a year in New Mexico for Administrative Law Judges and Hearing Officials.  The National Association of Administrative Law Judiciary (NAALJ) is having their Annual Conference in Santa Fe from September 18-21, 2011, at the beautiful La Fonda Hotel.  See http://www.naalj.org/conferences. Then, the National Association of Hearing Officials (NAHO) is holding its annual Professional Development Conference in Santa Fe from November 13-16, 2011, also at the La Fonda Hotel.  See http://www.naho.org/.

Wise Tips on Brief (and Opinion!) Writing

In the Fall 2010 issue of the ABA Journal of the Section of Litigation (Vol. 37, No. 1), retired Florida judge Larry A.Klein provides much excellent and insightful advise on brief writing.  As decision makers, we've all been presented with some great briefs and some awful ones and, as Judge Klein notes, it is sometimes even very qualified, well-regarded counsel that make the following mistakes.  Moreover, the tips are so perfectly suited to all legal writing that I have made a number of notes to myself to watch out for in the future.

The "Reasonable Person" -- a Product of Social Mores, Not a Mathematician

Micheal J. De Vinne, lawyer and historian, recently wrote a quite delightful piece tracing the evolution of that ubiquitous legal fiction, the "reasonable person."  See "The Reasonable Person as a Living Fossil," ABA Journal of the Section of Litigation, Vol. 37, No. 1, Fall 2010.  In tracing its evolution, he concludes the reasonably person is never defined by the law but rather left to a panel of peers to define based on the collected mores of the times.

Mediator Strategies, and the Role of Mediator Race/Gender

The Fall issue of ACR’s Conflict Resolution Quarterly had a number of very informative and interesting articles that are well worth summary, comment and praise.  See Vol 28, No. 1.  Of particular interest to me were two empirical studies:

• “Do Mediators Walk Their Talk in Civil Cases?,” by James A. Wall, Jr. and Suzanne Chan-Serafin; and
• “Fairness, Understanding, and Satisfaction:  Impact of Mediator and Participant Race and Gender on Participants’ Perception of Mediation,” by Lorig Charkoudian and Ellen Kabcenell Wayne.

The first study adds a very interesting twist to our understanding of the role played by our “mediator demeanor” or “style.”  The second adds texture to what we know and think we understand about gender and race dynamics, while highlighting some unexpected findings.

(Relatively) Recent and Exciting Arbitration Decisions

In the last few years, the legitimacy and reach of arbitration and arbitration clauses have been considerably expanded by the U.S. Supreme Court.  Three in particular interest me because they related to my own practice emphasis:  14 Penn Plaza, Rent-a-Center, and Stolt-Nielsen.  This blog will discuss their basic holdings and why they are significant in the larger scheme of arbitration.

Foreclosure Mediation - Limitations and Concerns

As part of my New Mexico mediation practice, I find I am increasingly being referred residential foreclosure mediation cases.  This is no accident as today, an increasing number of states and/or individual state courts are utilizing foreclosure mediation programs to manage the current "foreclosure crisis." Some states with such programs, either state-wide or local include: Connecticut; Delaware; Florida—various judicial districts; Kentucky—Jefferson County; Maine; Maryland; Michigan; Nevada; New Jersey; New Mexico—First and Thirteenth Judicial Districts; New York; Ohio—various counties; Oregon; Pennsylvania—various counties; Rhode Island—Providence. 

A recurring and thorny dilemma for mediators today is how to conduct and what are the proper parameters for a foreclosure mediation or settlement facilitation.

NM Survey -- Lawyers' Take on State’s Civil Justice System

In the January 12, 2011 edition of the New Mexico Bar Bulletin, State Supreme Court Justice Edward L. Chavez reported the results of a recent survey conducted by the NM Defense Lawyers Ass’n (NMDLA) and the NM Trial Lawyers Ass’n (NMTLA), at the State Supreme Court’s request.  See Bar Bulletin, Jan. 12, 2001, Vol. 50, No. 1.

The NMDLA and the NMTLA are comprised and represent the interests of members of the civil defense bar and the plaintiffs civil bar, respectively.  253 attorneys responded, and the results were interesting both for what they indicate, and the questions they leave lingering. 

Neutrals “Friending” or “Connecting” with and/or “Following" or being ”Followed by" Folks

I’ve posted several blogs recently about the impact and implications of modern technology for neutrals, such as the judiciary’s use of sophisticated Information Technology (IT) and internet sources in its decisions, and the increasing use and questionable reliability of internet-based primary sources.  Now, I turn to social media.

I or my firm is a member of various social media:  the ubiquitous Facebook; the quick & dirty Twitter; profile-building (I hope!) Blogger; and the imminently useful and informative LinkedIn.  When signing up with  LinkedIn, it automatically searched my email for contacts already on LinkeIn, and offered to extend an invitation to “connect” with the email “contacts.” I am a lawyer and a labor neutral, and my contacts not surprisingly included a number of labor and management representatives, and also lawyers from a number of different walks.  Moreover, once on LinkedIn, I signed up to follow a variety of interest groups, some members of which—presumably those interested in my Twitter and/or Blogger postings—have since “connected” with or begun to "follow" me.... Have I committed ethics violations???