Mediation in a complicated world

This writer's 21st-century "branding" is as a "senior judge" when I am recalled to sit as a trial court judge or as a mediator for the Court of Special Appeals or for a trial court.

When I am not recalled, I am a "mediator" or "arbitrator" in the private sector. As such, I mediate or arbitrate disputes, which may or may not be filed in state or federal court. By definition and by court rule, I am not "practicing law," which allows me to function in these multiple capacities in our criminal and civil justice system.

With this background and experience, I noticed two books that evoke very distinctive but, in my opinion, complementary themes. One book, "Politics, Dialogue and the Evolution of Democracy," is written by the renowned Ken Cloke, whom I have had the pleasure of meeting and learning from on the subject of coaching conflict resolution. This book reflects on the objectivity and neutrality required of an ADR professional mediating the escalatingly intense political conflict in the United States.

The other book is entitled "Tough Cases: Judges Tell the Stories of Some of the Hardest Decisions They've Ever Made." This book is edited by Russell F. Canan, Gregory E. Mize and Frederick H. Weisberg, who were trial court judges. It was written by 13 trial court judges, including the editors, and it candidly discusses the complexity and difficulty in resolving these hard cases.

Both of these books are even more topical and important if considered in the context of remarks by the late Judge Learned Hand, whom many, including this writer, believe to have been the nation's foremost jurist never nominated to The Supreme Court. Judge Hand said in 1944, as the nation waged World War II, "The spirit of liberty is the spirit which is not too sure it is right."

Well, what happened to the "spirit of liberty" in the 21st century? It is either extinct or well hidden, hopefully the latter! At best, it is lost or indecipherable in a sea of "talking points" that ignore or evade complex political, economic, sociological and other issues by rhetorically simplifying or trivializing them.

Isn't that what we were witnessing in the latest exhibition of this phenomenon the political theater and accompanying drama over the partial shutdown of the federal government and funding of a southern border wall? The drama played out before a captive, unwilling and unwelcoming cast of 800,000 federal workers, whose price of admission temporarily included their livelihoods and ability to plan for their families' futures.

Statements such as "We need the wall to have border security"; "Open the government first then we'll negotiate"; and "The wall is immoral" do not even acknowledge, let alone address, the dimensions and complexity of the issues behind the crisis. What the political actors in this drama do in absolute terms without even a modicum of humility is say, "I'm sure I'm right and you are wrong." Such an attitude is antithetical to the "spirit of liberty" Judge Hand described so eloquently in the middle of a real crisis World War II.

This attitude is noted even in the judiciary. Professor Dan Kahan of Yale Law School points out that while judges may acknowledge complexity and even uncertainty with their law clerks and colleagues in chambers, their decisions and their opinions, more often than not, "strike a pose of exact certitude." The state court trial judges writing in "Tough Cases," however, refreshingly confirm that their book aims to demystify judicial decision-making and to make the process understandable to ordinary people.

They succeed!

The only lament from these authors is their observation that because the judiciary is so "intensely hierarchical" this humility is not widely shared at the highest levels of the judiciary, particularly at the federal level. "Tough Cases" illuminates the fact that lower court judges have much to teach judicial officers at the most elite levels of the judiciary about the importance of acknowledging complexity and difficulty.

This is a conclusion I have no doubt my fellow lower court judges will enthusiastically, but with the requisite humility, echo loudly and clearly whenever a forum is available to do so. That said, the demystifying of the federal judicial decision-making process might also dramatically reduce the vitriol and distrust expanding exponentially, as can be seen in the confirmation process for federal appellate and U.S. Supreme Court seats.

Political issues in the United States have become increasingly complex. Some of this is inherent in the issues, whether they are decided by the legislative or executive branches. Some of this is attributable to excessive deference by Congress to the executive branch. And some has resulted from both of those branches, by default, passing along the responsibility for decisions to the judiciary.

This quandary raises serious issues for those of us whose profession is conflict resolution and who could provide such services in resolving political and governmental disputes.


Steven I. Platt, a retired associate judge on the Prince George's County Circuit Court, writes a regular column for The Daily Record. He can be reached at

Published: Mon, Feb 18, 2019


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