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Arbitration vs. Mediation

I have never been a big fan of arbitration. I have found that the supposed cost savings and speed of arbitration as compared with litigation are often illusory, and the results of arbitration are often, well, arbitrary. I am also opposed in general to pre-dispute arbitration clauses. If both parties want to arbitrate–and there are certainly cases where it is appropriate–they can always agree to do so after a dispute arises. Whatever the supposed advantages of arbitration, it seems to me hard to justify forcing a party to sign an arbitration clause in advance of a dispute. I had the chance last year to vindicate my principles in a case I won before the Sixth District Court of Appeal in California, Abramson v. Juniper Networks.

http://caselaw.lp.findlaw.com/data2/californiastatecases/h025840.pdf

In that case, the court held among other things that it was unconscionable for an employer to force employees to arbitrate all employment-related disputes, where the company “carved out” the right to sue the employee in court for violations of the employees’ confidentiality obligations. In other words, if arbitration is good enough for one side, it has to be good enough for both.

Now, mediation on the other hand, I think is generally a very useful process. One reason is that even if the case does not settle after a mediation, the process gives the parties a much clearer idea of their alternatives. At the end of a day of mediation, the parties have a better sense of the costs and risks of taking their case to trial, and they also know how much they have to pay, or accept, to buy their way out of the lawsuit. Then they are free to make a decision that is in their best, perceived interests. I have frequently acted as a mediator, and also frequently represent parties in mediation. I almost always advocate giving mediation a try.

The problem with mediation is that it is only beginning to be integrated into the litigation process. At the moment, it exists as either an alternative, or as another step the courts are requiring the parties to accomplish on the road to trial. I believe a great deal more could be done to make mediation an integral part of the litigation process. Many disputes within a lawsuit, for example, could be mediated: in particular, discovery disputes. Encouraging parties to adopt a process of negotiation and settlement of such disputes puts them on the road toward settlement of the entire case, and may help achieve results that the parties are more satisfied with, even if the entire case does not settle.

The Ambassador Hotel

I am representing seven organizations who are suing the Los Angeles Unified School District over the proposed demolition of the Ambassador Hotel, an historic landmark in Los Angeles, perhaps most famous for being the site of Robert Kennedy’s assasination. The Ambassador is also a distinguished building architecturally, and was a catalyst for the development of the city along Wilshire Boulevard. The hotel’s Cocoanut Grove nightclub featured many of the country’s most important entertainers. This is probably the most important preservation battle currently being fought in the city of Los Angeles.

This conflict has sometimes been falsely portrayed in the press as between some effete preservationist organizations and the interests of needy schoolchildren. In fact, the preservationists fully support the adaptive reuse of the Ambassador Hotel as a school, and believe that preservation of the hotel will provide a better educational experience than the school board’s current proposal. The conflict is actually between an inflexible school district bureaucracy, and the interests of the community as a whole. Here is the full text of a letter I wrote to the Los Angeles Downtown News, in response to a column suggesting that preservationists should give up the battle, which was published in part in its December 13 edition. The published version is here.

Dear Editor:

I represent seven different community organizations that have filed a petition challenging the adequacy of the Environmental Impact Report prepared by the LAUSD for the Ambassador Hotel site (Art Deco Society of Los Angeles, California Preservation Foundation, Hollywood Heritage, Inc., HPOZ Alliance, Korean Culture Center, Latino Urban Forum, and Mexican American Political Association). None of these petitioners opposes the construction of school facilities on the Ambassador site. Indeed, the petitioners support an alternative plan that would allow for school construction on 75% of the property, provide all the seats deemed needed by the district, and allow for construction of school facilities within the timetable already contemplated by the district.

The law does not permit the school district to proceed with a project that substantially impairs historic resources, if feasible alternatives exist that would preserve those resources. The petitioners believe such alternatives exist, and are therefore entitled to pursue legal remedies to make sure that the LAUSD complies with the law. These lawsuits may also serve the larger purpose of creating a better project than the one currently proposed by the LAUSD, that will make substantially more use of the historic resources on the site, instead of largely demolishing them, as the current plan proposes.

It is far too early to impugn the motives of those who are challenging the LAUSD’s actions, as Sam Hall Kaplan’s December 6 article does, by suggesting that at least some of the preservationists involved may be “self-righteous,” “supercilious,” or interested in “perpetuat[ing] their petty bureaucracies.” Although elsewhere in his article, Mr. Kaplan acknowledges that most of the opponents of the current project are sincere, and that he himself has supported the preservationist position, this kind of name-calling is not conducive to any kind of rational debate on the future of the Ambassador site.

Interest in preserving the Ambassador Hotel, a unique architectural treasure, as well as the site of major historical events in the life of this city and this nation, is broad-based in the community. Many people would like to see these historical assets incorporated to the greatest feasible extent in the construction of exciting new school facilities. These people are entitled to be heard and to have their views considered as expressly contemplated by this state’s environmental laws. They are not required simply to accept a bad decision, much less an illegal one.

My clients do not want to wage a long, costly battle for its own sake. Nor, I assume, does the LAUSD. More importantly than trying to “win” these legal contests, all sides should be interested in obtaining a better project. That is the goal of the organizations I represent. I believe that should be the goal of everyone affected by this project.