 Yeah, I'm Jay Fardell. This is think-tok and that handsome guy in the other screen, you know right above the the San Francisco Golden Gate Bridge is Jerry Clay the leader of Clay Chapman Which is a law firm that is well respected very prestigious law firm right down the block In downtown Honolulu on Bishop Street, and he has made a name for himself As an arbitrator mediator and an advocate for arbitration and mediation over the past 200 years It's quite something how Jerry has done that. Welcome to the show Jerry Well, thank you Jay My Jerry attrition will be interested in what you're saying So here we are in the world of COVID and And we wanted to take a look and see how the world of arbitration and mediation in the world of COVID interact Because we have to re-evaluate our way of doing business of doing dispute resolution Engaging with other people. It's all in Transformation right now and there's no exception for anything including arbitration and mediation But let's let's talk first about how you got involved in this and why you chose this as opposed to any other area of dispute resolution or legal practice Jay in 1984 the American arbitration Association began training their commercial mediator the commercial arbitrators to be commercial mediators And it's like a light bulb went out of my head and I said to myself. This is how society needs to move I Published a book in 1987 called before you sue how to get justice without going to court and I have been a proponent of thinking like a mediator is trained to think Which is different than a lawyer is trained to think a lawyer is trained to think to how to win and In a commercial dispute you only have to be 51 percent right to win and That's what our litigation system is It's all about how to win Mediation has a different premise You bring in a third party Between two folks who are having a dispute and it's the job of the third party called the mediator To convince each party. What is in their long-term best interest? and You know what it's a process that really We need to adopt as a society thinking about what is in our long-term best interest Right now Jay You are Anticipating what I'm going to say so you can be prepared to choose a question to send back to me that choice of What to say back to me is a thought process that I call a default thought process Based on everything that's happened to you up to this point Thinking like a mediator is different. It says stop and Think about is this honest? Is this in your long-term best interest? Is this in Jay's long-term best interest? It's a totally different process and I think the human race really needs to go to a thought process like that The whole idea we should all be mediators. You're saying we should all think like mediators Yes, we should all be trained to think about What's in my long-term best interest that is the How a mediator is trained to think now wait a minute. What about arbitration? It's not the same but it's not it's not very far off mediation. Would you say the same thing for arbitration? No arbitration is right next to litigation except your judge is somebody you choose privately and He has more power than your circuit court judge because his award is what's called full final in binding So you can't even if there are mistakes of law or mistakes of fact He's it you bought them. So arbitration is very much like media litigation Mediation is totally different than those two processes. Well, let's talk about the demographics in your practice I I would expect from this discussion that you would favor mediation if somebody walked in and said, you know, I have a I have a You know dispute I want to resolve the dispute You my guess is you would suggest mediation before arbitration or litigation You would say look, let's sit down and examine everybody's long-term prospects and Interests and we'll try to resolve it as as as real people as Kind decent real people interested in not only your own long-term interests, but the other guy's long-term interest Am I right about that? So is it that going in the right direction? Okay, so you you would you would do that most of the time I guess but in the in the real-world practical effect, how many of those non litigation cases are resolved What what percent would you say of those non litigation cases are resolved at mediation and how many at arbitration? Give me a presentation. Let me reword your question How many civil cases filed in the state of Hawaii end up with a final not appealable judgment You want to make a guess or shall I tell you tell me 2.7% 97% of all civil cases are either thrown out of court somebody dies or They sell There's a law review article that John Barkie at the law school did that came up with that statistic of 2.7% The system doesn't work as design. We don't get decisions based on who's right We get decisions based on I just don't want to be Being this anymore. We make decisions based on angst instead of our best interests Mediation gives you a brand new way of thinking about solving your problem with the other guy But between the two mediation and arbitration. What happens more often? I'm not sure you're saying of all the cases that go to mediation. What percentage settle is that what I hear you saying No No, and all the cases that are resolved an alternative dispute resolution Whether it be mediation or arbitration, how many are done by mediation? How many are done by arbitration? I don't have any statistics, but the real question I think you want to ask Jay is of all the cases Where I have been brought in as a mediator of All those cases how many have have actually settled at the end of the case. That's a good question. Let me ask that question and In the last three years, I've only done about nine big cases, but in the last three years six of them have settled in mediation Three went on to either arbitration or Litigation Okay, so now now we're talking about a change here. We're talking about people trying to You know, I think we're all going to be changed in the transformation around the crisis I mean some more some less some will try to get back to the way it was and forget about you know changing Change only to go back and some will take it very seriously and they'll be looking for new ways more efficient ways More decent way more moral ways more ethical ways To do things and I suggest to you that that's a great moment for a would be litigant To say I think I'll try Mediation on this. I want to try to work it out But there's one other consideration I want to throw at you and which could come out of the coronavirus crisis I'm not only interested in Serving my interest which I have to consider and in appreciating the other guy's interests Which I I should consider to you know be realistic, but I'm interested in the community effect of this Is this good for our society? Is this heading in the right direction? I wouldn't call it precedent. Although that does come to mind. I would call it. Is this good for you know for all of us Because if it's not good for all of us that is a consideration in my view the question of decency In my view in the room, I don't know if that's your customarily considered Intermediation, but it seems to me that after we finish a really hard time in this crisis. We really want to think about that I'm totally in agreement with you Jay and I think coming out of this is going to be a lot of fits and starts How do we analyze whether it's a it's a fit or if it's a start and Part of that is going to be number one. We have to start with values. I mean when you're taught to win You often fall into the trap of exaggerating your positions Exaggeration is a bad way to go One of the crucial aspects to make mediation work is that You have to have values you have to have what we call Mediation gravitas the respect of the parties for what you're saying and that comes number one from not being manipulative and Exaggeration, but it comes from being straight it comes from being honest and it comes from the genuine interest of helping each Party solve a problem in their long-term best interest Well, this is style factor to Jerry And that is you know, it reminds me of these guys. I don't remember the program was on television a few years ago Might have been 60 minutes or frontline and what they did is they went from lawyer to lawyer in downtown Manhattan with a suitcase full of money and And they each in each case they told the lawyer This they needed to launder this money Including some Wall Street firms they went And they opened the suitcase and there was a lot of money and they and the lawyers most of them, you know They were interested because they saw some of that money going to them And so they all had an answer about how you can launder the money. Well, that was illegal Okay, they went to this one old guy who practiced solo also in Wall Street And they showed him the suitcase and he said Get out. Get out. You saw this program get out get out of my office and you loved him for that And so here we have a mediation situation. We have a mediator and maybe you're meeting with them separately, right? As mediators often do to sort of see what that fellow is going to talk to you about and you know one-on-one And somebody comes up with something that is really Inappropriate immoral untrue You know a tactic that is really below the standard And the question is you have to stop him You must stop him for your own credibility and for the benefit of the you know the institution of mediation But it's a question of style you could say hey, that's illegal get out of my office I'm out of this or you could say hey, let's talk about your morality What do you do in a case like that? What does the average mediator do? What do you do? It's obvious you hold two standards because this is how we are created We are created knowing standards and you don't lie even when you know you'll get away with it They'll make more money. You don't do it. You don't choose that That is not in your long-term best interest. It may be in your short-term interest You might get a little more money, but you know what you got to remember your lie because you can't cross it later on So it becomes a burden And we are heading back as a society to values. We have unfortunately allowed ourselves to think in terms of getting away with it winning and It's time to stop thinking in terms of binary thought processes. It's not win-lose It's not good bad. It's what's in your best interest Well, if I'm if I'm about to go bankrupt and somebody's coming after me for some money that I can't pay him My best interest is not to go bankrupt. Isn't it my best interest is survival? I'm desperate make me desperate call her me desperate and I'm in your office as a one-on-one with the mediator I say look Jerry you're a nice guy and I appreciate the morality of it But I'm gonna go bankrupt and I I'm gonna lose my house my car my wife my children It's all gonna be over for me. So I have to do what I have to do and that includes desperate moves What do you say to me? Is it legal? Okay, barely you know if It's legal You presented as an alternative Along with what are other alternatives and if there are no other alternatives that you give this client Then he's got to choose what you tell him is legal, but you can't do something that could be shady I mean, there's not a bright red line It's a very gray line in between and my advice always is try to stay on the right side of that line you Long term you will not Benefit from doing something shady. You will have a reputation problem. It will stay with you and This is the discussion society is going to have to have going forward and you know The idea that we could have a leader Who has such a pathology that line is appropriate? Really says it's time for a big change for society. Yes, it does yes It is and and you know where that comes from it comes from thinking in terms of what is in your long-term Best interest that is the core principle of mediation. There was a book published in the 1970s called getting to yes and the core message of that book is You have to think in terms of your long-term best interest that fostered the Harvard School of Negotiation which right now is probably the center of teaching about this So, um, you know, I think I think we're gonna have disputes We probably have disputes already emerging out of the corona vices coronavirus crisis Where businesses stopped where business people could not pay bills Where no other business people wanted to collect bills You can call it dispute But it's you know, it's really it's a rock in the hard place for both sides I think I'm gonna have a lot of cases like that And I guess my first question is is that is that a mediatable media mediation able? Kind of dispute. It's just collection really There are I suppose defenses There are interpretation questions like for example in insurance policy or in a contract Does it doesn't say epidemic or does it not say epidemic? Does it say act of God or not? There are cases and my question Can I can I can I respond? Sure You are talking about a technique called negotiation And negotiation has elements that include ethics and include law and to the extent that A landlord has an unsalable position I mean Then the client I guess is left with the idea of going bankrupt But it's always, you know I remember I had one professor in law school who at the end of His course he had a day of talking about ethical issues like you and I are chatting about now And he felt so disappointed That the responses he was getting Were bordering on unethical We don't teach ethics in law school As far as I know no they did in my school NYU that we had a class in ethics for sure I went to Michigan and I do not recall a course in ethics except for this one experience. I told you about Yeah, well, you're younger than I am I doubt that I have to see my gerry on gerry Remember years old the upshot. Okay is I would guess that you're seeing The beginning of this already you and your special practice Then I would also guess that people are going to have a different view of it as we come out of that A different view they're going to they're going to realize that going to court is not efficient at all It's very expensive jury trials are like the catalac of the catalac Costs you so much money And arbitration is not too far off because arbitration Over the years has become a very expensive process Almost like going to court sometimes more expensive than going to court And so you know mediation and negotiation as you say is going to be more important So my question is how do you see this evolving? How do you see this as transforming itself in the context of our Call it recovery our transformation from the old days to the days after we have Come out of the virus Jay, that's an issue that I have been working on Because I don't really have the vision My guess is That there will be people who Lead movements to talk about going back to Values Long-term best interests I have a book that I can recommend called forge in crisis about five leaders and The what it took for them to be successful Rachel Carson was the one that I found most interesting of how she started the Uh movement toward uh ecology Silent spring. Yeah. Yeah. I mean, you know, she she wrote silent spring while fighting cancer And going through weekly Chemotherapies that left her sick But the mission was so important. She had to get the book out And I don't know Jay that I can ever Get to that point. But what I am doing right now is writing you saw my article in the star advertiser I said in that article what I said to you today But nobody has asked me about it in the terms like we have talked about today I want to see if I can't find a way to get a message I One thing I've done is I've hired a pr agent. That's how I got in the star advertiser to get this message out Because Jay, this is the most important message for us to come out of this It's what the young people need to hear Our generation has Fallen into a bad thought process Younger generation should not think in terms of just right and wrong When lose we need to think in terms they need to think in terms of 50 years from now When the world they will inherit will be much worse than the world. We're leaving them That's an unfair status They need to be able to take over With new ideas and new ideas are all based on values Right Values you don't lie. You don't cheat. You don't exaggerate We need to take responsibility when you're wrong and and of course the redefinition of leadership as well Leadership in any organization in a in a in a private company in an institution a government organization But let me ask you one thing before we run out of time, Jerry And that's and that's the mechanical side the process side You know, we are learning you and me right now today. We're learning about remote connections and and zoom and skype and Webex and a number of them and that'll shake out because there's there's a lot of money in that kind of technology as we have seen with with the zoom expansion But um, it seems to me that all legal transactions including negotiation of business deals Including mediation arbitration even litigation process in the administrative side of government legislative legislative gatherings and enactments, you know Ultimately, it's all going there just the way Voting is going to mail voting inevitably it will Uh, or even online voting So How do you feel about that? Do I get the same? human treatment and result do I get the same sensibilities the same, you know Deep examination and deep understanding of the interests and motivations of my opposite or of the mediation parties Through zoom as I would together In a room together I have thought a lot about technology and how technology could answer the problems of the human race And one of the ideas I came up with a friend of mine who Uh sells his services in technology is we need to have a platform where the existential issues affecting particularly the young people can be used to generate options and solutions and The idea would be can we ask these existential questions? And then have the human race come in with answers and then use Uh ai to refine the answers until we get an answer that the crowd basically has joined into saying That's the way to go interestingly I found a website that is close to doing that. It's called quora. Are you familiar with it q u or a yeah I don't really know how it works, but i'm asking friends to say Can that be the platform to begin to talk about the big existential problems? I think it can be it it may not need a whole lot of tweaking um And you know, it's also the place to also Discuss values every solution has to pass a the smell test It you know, it has to be that there's no personal interest motivating the the choice of response That you're choosing to respond to be with cherry that you hear the music That's our engineer's way of saying the next show is going to start in one minute So take the minute and leave a message with our audience Read getting to yes It's a great read. Also. I am considering starting workshops on Thinking like a mediator anybody who might be interested in doing something with me. I'd be interested to hearing from How can they reach you jerry jerry clay at the clay Chapman law firm? How can they reach you? They can call me five three five eight four zero five. That'll ring up my home Or send me an email g clay at pat p a c law l a w team m.com Thank you for the opportunity jay Thank you, jerry jerry clay the leader of the clay Chapman law firm and a mediator mediator par excellence. Thank you so much