by Jennifer Dodd
The University of La Verne’s Ontario College of Law hosted the Dean’s Distinguished Speaker Series on Nov. 19, featuring Dorothy Nelson, senior judge of the Ninth Circuit Court of Appeals.
Nelson shared her knowledge and insights on “Alternative Dispute Resolution: Challenges for Legal Education and the Legal Profession.”
Nelson has worked in the field of law for 50 years and is an expert on alternative or appropriate dispute resolution. She is currently serving as chair of the Ninth Circuit Standing Committee on the subject.
She has also received numerous awards of distinction, including the American Bar Association Dispute Resolution Section D’ Alemberte/ Raven Award in 2000.
Nelson began by describing the appropriate forms of dispute resolution other than trial.
Mediation, where parties come together voluntarily to try to work out their differences with the help of a third party or alone and arbitration, instead of going to court, one to three people are appointed with both parties trust that they will decide.
Nelson shared a story of being in a faculty meeting in the 1950s, and being questioned about what she taught her classes about bringing people together. Her ideas were tossed aside at that time by her colleagues, saying that trying to get everyone to love each other was a “woman’s thing.”
“Alternative dispute resolution has been the hottest topic in the legal system in the last century and will continue to be in this one as well”, said Nelson.
The country has been challenged with a series of problems in the last century, such as racism, poverty, sexism, health care, and the environment. Technology and big business has all added to the need for cooperation and collaboration like never before, said Nelson.
ADR procedures have the potential to significantly reduce the costs and delays associated with traditional court proceedings. Currently, the types of services ADR encompasses are referred to as arbitration, mediation or counseling.
Nelson also stresses the other benefits of ADR, not merely the reduction of court costs. She referred to the time she took a sabbatical in Israel and went to a Greek Orthodox court to observe a wife sue her husband for divorce. Three Orthodox priests presided over the court and the problem was the wife could no longer stand living in the same two story, two room house with her mother in law.
The judge’s solution, to get a ladder so the wife would no longer have to deal with the mother in law, while laughably simple, evaded a truly tragic outcome of divorce and the couple left happily holding hands. Nelson acknowledged that a good outcome would probably never have happened in U.S. court and the couple would have most likely been divorced.
Nelson emphasized that she is not against lawyers. Many of the things that occur in the court system simply do not have to be there. Nelson quoted Supreme Court Chief Justice Warren Berger, who in 1984 addressed the American Bar Association. “For some disputes, trials are the only means, but for many claims, trials by adversarial contest must in time go the way of ancient trial of battle and blood. Our system is too painful and inefficient and painful for civilized people”.
Nelson went on to say that the adversary system places to low a price on truth telling and too much emphasis on winning. In general, the adversary system supports competitive aggression and brings out the worst in human nature.
In her travels and experience she has seen the need all over the world for the current system to be reexamined.
“Lawyers and other ADR providers need to focus on pretrial mediation; their roles should be that of constructive problem solvers and peacemakers rather than zealous advocates,” said Nelson.
The approach in each case should be tailored to the context of the case, paying close attention to the cultural forces at work.
“All law schools, including La Verne, must make advances in incorporating ADR concepts into the curriculum. Law students must learn how to become analysts, counselors, negotiators, planners and problem solvers,” said Nelson. Students have to identify the underlying interest of their client and be creative in getting to an effective solution.
Nelson said ADR is a holistic approach to problem solving.
In her experience, most of the time what most people want, is an apology and assurance that it will never happen again.
Of course, Nelson pointed out this is not true for all court cases, but that ADR can help a client to remain in control of their dispute, where it cannot be when it is handed over to a judge to decide.
“Many judges feel ADR will diminish the rule of the law, but I think that is a silly idea when less than five percent of cases ever go to court anyway. ADR has the potential for good social consequences,” said Nelson.
Audra Aguilar, a business finance alumni from University of La Verne, said,”This is the first time I have attended the Distinguished Speaker Series. I am interested in law and found Judge Nelson’s views very informative and interesting.”