It's not that I don't like mediation. Really. It's a good thing.
Mind you, parties and lawyers have come to rely upon it too much. I'm old enough to remember the days in which lawyers would negotiate most cases themselves and, acting reasonably, settle them. Now that rarely happens without the assistance of an outsider engaging in shuttle diplomacy from room to room. We've lost (at least collectively) the skill and art of being able to advance reasonable settlement proposals without the crutch of someone else to blame.
But I'm almost never going say that a case shouldn't be mediated. Especially because lawyers and parties are so used to it by now, cases that I never thought would settle sometimes nonetheless settle at mediation.
That said, I must say, I'm somewhat sympathetic to what Judge Kozinski says here.
This case involves a dispute that has lasted what seems like an eternity. The question is whether states are required to allow gun shows on their property. It involves repeated Second Amendment plaintiffs Russell and Ann Sallie Nordyke versus Alameda County.
I won't recount the variety of opinions and amendments below. Suffice it to say that the case is now en banc. And, today, the Ninth Circuit entered the following order:
"The panel believes that the parties should attempt to settle this dispute by agreeing on the conditions for holding gun shows at the Alameda County fairgrounds, with the assistance of mediation. The case is referred to the Circuit Mediation Office for mediation, and its submission is deferred for 45 days or pending further order of the court."
Who can object to trying to get settled, after all?
Judge Kozinski. Who (alongside Judge Gould) dissents from the order with the following statement:
"The parties have not asked for mediation; they have said nothing that suggests mediation would be fruitful; when asked about it in court, they displayed obvious distaste for the idea. We overstep our authority by forcing the parties to spend time and money engaging in a mediation charade. Our job is to decide the case, and do so promptly. This delay serves no useful purpose; it only makes us look foolish. I want no part of it."
I said I'm sympathetic with Judge Kozinski's thoughts. But let me start by saying that there are parts of it I think are wrong (or misplaced). For example, the fact that the parties didn't express any interest in mediation isn't necessarily dispositive. I've seen lots of cases settle at mediation under identical circumstances. Contemporary attorneys may have lost their collective ability to directly negotiate, but they've retained intact their ability to posture. Similarly, I disagree that an appellate court oversteps its authority by asking parties to mediate. Virtually every trial court does it. Most every federal circuit (including the Ninth) has a mediation program that does precisely that. Court-influenced alternative dispute resolution doesn't suddenly become improper once the trial court enters a judgment. So I disagree that the Ninth Circuit's job is simply "to decide the case" and that anything else is improper. The court's job is instead to resolve the case, and that can include settlement. Of that I'm confident.
(Plus, the order doesn't "force" the parties to participate in mediation. No one can compel mediation, which is definitionally voluntary, and no ethical mediator would participate in an involuntary process. The order just vacates the submission for a limited period of time and suggests that mediation might be helpful. The parties remain free to decline the offer and refuse to participate.)
So I disagree with Judges Kozinski and Gould about the role of the court. But with respect to this particular case, I agree that the mediation will not be successful, and simply delays the case. And I'll bet a fair amount of money on that with anyone willing to take me up on the offer. I'm confident it won't be successful for two different reasons. One is passion. The other is money.
With respect to the former, on the one side, you've got plaintiffs and counsel who feel incredibly strongly about their right to carry and sell guns, and on the other side, you've got a county that daily witnesses gun violence and so feels strongly the other way. People who are rabid tend not to compromise. Especially when they've got lawyers who feel the same way they do. Having a circuit mediator on the telephone isn't going to convince one side or the other that their views of the Second Amendment are erroneous.
With respect to the latter, even if the parties could see the handwriting on the wall, and could figure out in a general sense which way this case is going to come out, they still won't settle. Because even in the unlikely event the parties could agree on allowing gun shows at the Alameda County fairgrounds and the conditions under which those shows could take place (and, to be clear, they won't), counsel for plaintiffs will condition settlement on payment of millions of dollars in attorney's fees for the resulting successful prosecution of this Section 1983 case, and defendants aren't going to be willing to pay it. And they're especially not going to be willing to pay when the scope of any potential victory by the plaintiffs is unclear. It's just not going to happen.
Judge Milan Smith writes an interesting concurrence that says, in its entirety: "I concur with the Court’s order sending this case to mediation. However, I would have attached a copy of a proposed disposition in this case so that the parties would know what they would face in the event mediation fails." Which makes some sense (though, sometimes, it's precisely uncertainty that creates settlement pressures.).
But, to tell you the truth, I already know how this case is coming out, so I don't think a draft opinion would make any difference. (Plus, if that's your view, why not just issue the opinion, since mediation would be just as successful after reading the actual opinion as it would be upon reading a "tentative" opinion that everyone knows will be issued in the event mediation is unsuccessful.) The order itself hints at what the resolution will be when it suggests that the parties agree on allowing gun shows at the fairgrounds, which tells you that the court's hardly going to the county was permitted to entirely ban such shows. And the fact that Milan Smith wants the parties to see "what's in store for them" says a lot. It's not Judge Reinhardt wanting to tell the parties what's in store for them. It's Judge Smith. Get a sense yet on which side's going to be happy?
But I could have told you how this case is coming out even before all of that. All you have to do is look at the en banc draw. Which should have created massive high-fives on plaintiffs' side, since you'd be hard-pressed to draw up a more favorable panel for them. You've got Chief Judge Kozinski (of course), and Judges O'Scannlain, Callahan, Milan Smith, and Ikuta. I consider those Republican appointees very solid pro-Second Amendment votes. That's 5, so you only need one more. You're definitely not getting Judges Pregerson and Reinhardt, who are on the panel, and Judges Graber and (likely) Hawkins aren't huge gun rights fans as well, so let's count those four Democratic appointees no votes.
But then you've got Judge Tallman on the draw -- essentially, a Republican appointee (even though nominally appointed by Clinton) -- which means you've got a majority-conservative draw on a hot-button conservative topic notwithstanding the fact that Democratic appointees are in the majority on the Ninth Circuit. Plus the en banc panel's rounded out by Judge Gould, a potential seventh vote as well.
So plaintiff's going to win. Maybe the precise contours are unclear. But I can say without researching any of the arguments or any of the particular judges which way this one's coming out based entirely on the draw. A decision to issue the opinion thus doesn't really advance the settlement ball much, and certainly doesn't mean that mediation should (or should not) be ordered.
I'd write more if I didn't have to get to class. But that's probably for the best, since this post is overly long already. I'm sure that Judge Kozinski will keep his dissent the way it is, despite what I think are errors in it, because it's classic Kozinski. And I'm sure the majority will retain the order despite the fact that I'm virtually certain it'll be fruitless.
What's another 45 days of delay in a case that's already gone on for five years (and longer, if you count the numerous Nordyke companion cases)? Not much.
But not much benefit either.