Our Common Law Highlighted by Frenchman's Case

In the news: former head of the IMF, Dominique Strauss-Kahn was arrested recently in New York for alleged sexual assault -- and subsequently resigned his post. The case has all the trappings of a summertime blockbuster. However, for the French, conduct of the case in American courts can be perplexing, regardless of individual's political opinions of Mr. Strauss-Kahn. As the New York Times explains:

While the American justice system has its origins in British common law and involves ordinary citizens at almost every level, the French judicial system is rooted in the Napoleonic Code and is largely conducted behind closed doors. Suspects are typically ushered into courthouses through discreet side entrances, out of view of the public.

State-appointed magistrates prosecute and pass judgment in most trials without the oversight of citizen jurors, who serve only in the most serious cases. In such cases, formal charges come — if they come — only after a lengthy inquest by an investigating judge, who collects evidence on behalf of both the prosecution and defense before determining if a trial is warranted.

And in further contrast to the American system, investigating magistrates are legally bound to secrecy during an inquest.

Because of this secrecy the French judiciary has more discrete control over the case, managing the investigation on an intimate level, and deciding only then whether a trial is merited. A jury is only provided in extreme cases, the author explains.

As such, the extreme publicity which pervades the US system is perplexing to the French, who criticize it as "theatrics" and alternately praise it as a system which "does not hesitate to apprehend even the most emblematic personalities with lightning speed" -- the same criticisms and praises which our system gets from the locals, too.

Uncertainty

One of my jobs as a lawyer is to explain the pros and cons of crucial, expensive, and often emotional decisions to employers who have been accused of some wrongful conduct (usually on wage and hour, workers' comp discrimination, other discrimination, wrongful termination, retaliation, or union-related matters). Always, the advise must be informed by the inherent uncertainty in litigation.

When asked for advice on the art of legal practice, I usually tell students to divorce emotion from the process and apply the law to the facts. Even under those circumstances, the no legal issue -- however frivolous -- is 100% certain. How can this be? The answer is manifold: unscrupulous litigants will "bend" facts to suit their needs, even in the absence of such "bending" some facts lend themselves to  interpretation (e.g., an innocent comment or gesture can show discriminatory animus if repeated or not properly explained), juries are notoriously emotional bodies, and the court itself is not immune from a policy-based view of the facts.

Taking all that into account, the advice proceeds along the lines of, a discussion of the facts, some application of facts to the law, an explanation of the opponent's best case, an explanation of the process of trial (including discovery, pretrial motions, trial filings, interactions in court, the trial itself, and post-trial filings), followed by a range of budgets for the litigation, including best- and worst-case outcomes.

But in the end, the question comes down to this: will the employer prevail at trial? And the answer to that question can never be "yes." On the other hand, rarely is the answer "no." And this is where the discussion of uncertainty begins. At trial, the best, most logically sound argument can fail for three reasons, two legal and one human: credibility, policy, and emotion.

The spectrum runs from the total uncertainty of trial to the total certainty of the early payment of the opponent's demand. In the end, few cases proceed on either of those paths. Instead, nearly all cases resolve through some sort of informal settlement of the issues or alternative dispute resolution or "ADR." These provide a way for the parties to keep some degree of control in the process, and craft an outcome between them, rather than letting the unknown (but neutral) entities of the court and juries decide.

In the end, the client must make that difficult choice: pay some amount up front, or proceed through litigation and let the court decide. I suspect uncertainty played this same key role in memorium, and suspect it will continue play a key role in perpetuum.

Mediation in the Employment Context

Mediation is a form of alternative dispute resolution ("ADR"), a set of party-driven procedures designed to resolve a legal dispute without a formal trial before a judge. Instead, a mediator assists the parties to come to a resolution of the matter. Mediation is usually a form of non-binding ADR, meaning the parties can walk away from the process at any time. However, a good-faith attempt at mediation may be ordered by some courts or may be conducted by the court itself (usually called a "mandatory settlement conference" or "MSC").

Because mediation is informal, there are as many different ways to go about it as there are mediators. Often the each party will prepare a "mediation brief" -- essentially a statement of the party's position identifying key evidence, testimony, and legal authority.

The mediator's job is usually to weight the evidence and legal authority and assist each side in a rational evaluation of their chances at trial. The mediator brings impartial legal experience to the issues, assisting the parties to find a middle ground.

However, mediation can play a secondary role -- that is allowing the employee to air his or her disputes in a safe place. If appropriate, a good mediator may allow the parties to address one another, and explain what happened from their perspective. Although this by itself might not assist in resolving the underlying legal positions, it can have important implications in the case.

An employer-employee relationship is often an emotional one. Unintended slights might be misconceived on either side, and may be amplified by litigation. These emotional issues may lead to poor results at the mediation (i.e. no dispute resolution). However, mediation allows the parties to control their fates in a way that a regular trial of the issues does not:

• Mediation and settlement are usually confidential; whereas trial and verdict are usually public.
• Mediation cost is usually significantly lower than trial cost.
• Creative solutions can be implemented by the parties; whereas the courts are bound to legally supported awards.
• Trial is disruptive to business and personal schedules.
• Uncertain litigation can affect a corporation's ability to get funding or the like.
• "Dirty laundry" gets to stay in the dark, avoiding bad press and other lawsuits.
• Jury verdicts can be much higher than the parties dream of; and trial can be an all-or-nothing battle.

To enjoy these benefits, employers must be able to detach themselves and see resolution as a business decision. Whereas, employees must understand that usually they bear the burden to prove their case, and that such proof is often an uphill battle. Experience attorneys know when mediation is appropriate and when it will just add to the cost of litigation.