Part 1:
Quote of the Quarter

“Our recollection keeps changing.”

So, said Rudolph Giuliani, to George Stephanopoulos, on July 1st’s “This Week”. Giuliani’s vicarious admission (its unwitting irony aside) resonates with the arbitrator and master in us, as it undoubtedly would with any judge.

For reasons ranging from lying to delusion, spinning to wishful thinking, conflation to cherry-picking, from cognitive erosion over time to dementia, simple self-interest or the “Rashomon effect”, testimony is fraught at best. For any factfinder, finding the least unreliable “truth” is a daily challenge, one that we are taught is best-plumbed through the adversarial system: a set of rules that make it hard to tell a story on direct examination and easy to tear down credibility on cross.

And, then there is Giuliani’s client

As a former judge and an active divorce arbitrator and special master, we appreciate this challenge, recognizing that until we discover an actual truth elixir, it is the best that we have. With parties testifying about 10 to 40 years of marriage, every one of the fact-defying contaminants identified in the preceding paragraph are at play, a sobering reality.

Which got us thinking about Part 2.

Part 2:
Neutrality Versus Impartiality

As mediators, we are challenged by the concept of bias, daily. We tell our clients at the start of each case that we cannot promise “neutrality”, as that suggests that we are more machine than human, but that we strive for “impartiality”, which we define as the desire and ability to recognize a loss of neutrality – bias - and undertake conscious effort to correct for it when it occurs.

We challenge clients to call us out if they perceive us to be “tilting” in a way that they see as partiality. At the same time, we caution them that they are often asking us to express evaluative views, with which they will frequently disagree; and that partiality is not simple disagreement, but rather behavior that is based on personal likes and dislikes, conflicts of interest and being judgmental instead of exercising judgment.

Which got us thinking about Part 3.

Part 3:

We listened to parts of FBI agent’s Peter Strzok’s July 11th “testimony” before a joint House committee earlier in the month; and then a discussion of it on Mike Pesca’s Slate podcast “The Gist”, the next day. Pesca, who is an intelligent and unabashed center-lefty, seized on Rep. Trey Gowdie’s (R-SC) questioning on the significance of Strzok’s bias on the Mueller investigation; and Strzok’s efforts to both pre-empt and respond to it.

The GOP spent a long day trying to beat Strzok into admitting his bias against their sponsor, bias that was established the moment that the Justice Department Inspector General discovered the texts to Lisa Page about the campaign. The pandering congressmen beat the obvious to a pulp, willfully (we hope) blind to the difference between neutrality and impartiality.

That Strzok’s fears were shared by 2/3 of the country is beside the point. There was not a waking soul in the US who did not have an opinion in the runup to the 2016 election, and few minds have been changed since. What the committee inquisitors failed to demonstrate – or even try to prove, really - was that was that Strzok’s bias was either unrecognized by him or unchecked in the performance of his duties.

Strzok tried to parry the GOP’s attack by pointing out that he had open access to campaign-killing information about the already-pending FBI investigation into Russian contacts with the Republican presidential campaign. Neither he nor Page leaked it.

Further, he pointed out that he was an equal opportunity complainer, whining openly about the democratic candidates and apparats, just as we all did. A pretty fair point – dare we say exculpatory – especially when combined with the fact that the special counsel fired him as soon as the IG uncovered the impolitic, damning and highly discoverable text chain.

Pesca argued in his podcast that bias addresses the inevitability of pre-conception in everyone, the difficulty of monitoring oneself for it, and in effectively “wrestling” it to ground, so that one’s ultimate conclusion – whether consistent with bias or not – is not fatally infected by it. Strzok admitted his bias, Pesca observed, but the GOP offered no evidence that he had not successfully set it aside in performing his duties, as noted above, before Mueller sidelined him.

In our work, potential for bias is unlimited. Our own upbringing and life experience; our professional stories; experience with and views of representing lawyers; resonance between parties and other people whom we have encountered; the parties’ demeanor when they are with us; credibility shortfalls; challenging case theories; the perceived wisdom of the legislature and court: they all create bias.

To say otherwise is deny our humanity, which the source of many of the tools that parties seek when they come to mediation, and futile anyway. All we can say is that every day we take on the challenge to do the best that we can humanly do to be reflective and self-adjusting when we need be; to be driven by the facts and law as we understand them when evaluating; and by the parties’ interests when facilitating.

While we can only aspire to perfection, we do work at getting better in every session.

Part 4:

This is the last LDRC newsletter that you will read while both of us are practicing private dispute resolution. When only one of us remains, it would seem unseemly to use the “royal we”, so the next time out, you’ll be hearing from Bill only, since Chouteau will be happily retired.

We hope you’ll read anyway!

Part 5:
The Blog

This newsletter is quite long enough already, so we will not supplement it with The Blog, except to invite and encourage you to take a peek, and grab the feed, here.

Enjoy the balance of the summer.

Chouteau and Bill

© 2019 Levine Dispute Resolution Center LLC. Dedham and Northampton, MA
781.708.4445 | 413.341.1017 | Email: wmlevine@levinedisputeresolution.com

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