 This is Think Tech Hawaii, Community Matters here. Hi, good afternoon, Aloha, and welcome to another episode of Living Legend Lawyers, a program sponsored by the Hawaii State Bar Association in conjunction with Think Tech Hawaii. We are here today at the Think Tech Studios. My name is Howard Luke. I'll be your host this afternoon. I'm the current president of the Hawaii State Bar Association. I am so honored to have as my guest today Mr. Gerald Jerry Clay, who is an attorney, and I hope I'm not embarrassing him, who I think now has just over 50 years, about 51 years in law practice. Is that correct? That's right. Okay, and tonight, today we're going to talk mostly about mediation, which is very close to Mr. Clay's heart. And it's something that he does with the Mediation Center of the Pacific, and also he has written extensively about mediation. He has spoken not only on this program, but on many other programs as a featured speaker. He was honored by the Mediation Center of the Pacific a few months ago for the work he has done. There's so many other things that are notable about Mr. Clay's life, but this afternoon I'd like to focus on mediation in the limited amount of time that we have. So Jerry, welcome to the program. Thank you, Howard. Okay, and Jerry, I think most people will want to know a little bit about your background. We'll do a quick flyover if we can. You were actually born on the mainland. Born in Cleveland, Ohio. Went to law school in Ann Arbor, Michigan. Moved to Detroit practice there for six years. Heard about a job opening in Hawaii. Came down here for the first time, a January 2, 1974. Wow, yeah. Didn't take me long to say this is better than Detroit. If I get the job moving here, the rest is history. Okay, the rest is history. And we could spend a full half hour talking about your work with Alexander and Baldwin and then your firm, which has about 20 people. But we're going to get right into mediation. Thank you. So, getting right to the point, what is mediation? Before you answer, the normal belief among people who view what lawyers do is that, you know, when there's a controversy that gets to court, for example, you have a lawyer or more than one lawyer on one side and lawyers on the other side and they clash. And, you know, if you watch television shows, it's very adversarial, entertaining and sometimes titillating where, you know, one lawyer all of a sudden pulls the rabbit out of the hat and this is what happens and there's a very dejected loser and a very ecstatic winner. How is mediation different? Let me start with your last premise and tell you why that premise is wrong. First of all, let's talk about the case that virtually, if you get involved, will be a civil case, not a criminal case. Correct. For civil cases, the statistics are that of all the lawsuits that get filed in the state of Hawaii, only 2.7% ever have a final judgment. That's crazy to go through all of that and at some point you're going to settle. I think most people would be astounded to hear what you just mentioned. And we have somebody from the law school who did a study and that's what they came up with. 2.7% actually have a final judgment. Interesting. So what's the difference between mediation and lawsuits? And arbitration, by the way, is the same as a lawsuit except you hire somebody to be your judge. As opposed to having a judge in a court. That the taxpayers pay for. Right. So we each pay half. That's arbitration. But it's still adversarial as court cases are. The winner is the one who's 51% right. And the loser is the one who is 49% right or less. Okay. But only happens 2.7% of the time. So let's talk about a subject that has become, as I have gotten old, or at least older. I'm celebrating a birthday tomorrow. I won't tell you when I was born. I won't tell me. And I won't tell the viewers that you're having a birthday tomorrow. And I do know when you were born, but I won't mention it. Thank you. I was born on September 27. That we know. Okay. Let's go on. Mediation. Mediation is such a different way of solving civil disputes. Because it doesn't look at who's right and who's wrong as the only way to solve a dispute. This idea that, you know, it's a zero-sum game. The idea that there can be a winner and loser. That's in sports. But disputes are between people who are not in a sporting game. They have a relationship for the most part. And a mediator is called in when the two people can't work out anything between themselves or between their lawyers. So what does a mediator do that so different? Instead of just looking at who sounds more right than the other one in the dispute, the mediator looks at what's in your best interest. You know, besides the money you're going to pay, besides the angst and the sleepless nights that you're going to go and prepare, in the end you're going to settle. So let me help you find the best way to settle. And the best way to settle is by having a third person help you acknowledge what's in your best interest. So the third person would be the mediator. Exactly. Exactly. How many mediation cases have you, I don't want to say presided over, because in preparing for this afternoon you give me the sense that all of you are in this together, a mediator in harmony to find what's in the best interest of everyone, the two parties involved, two or more parties. So when you decide to mediate a case, I'm sure that's what you're looking at. How many cases have you mediated to completion? I started this in 1984 and around 6,700 I stopped actually counting. I'm sure it's well over a thousand. That's incredible. Anybody who's done more in Europe? Keith Hunter, who's the administrator of dispute prevention and resolution, has now said he's done over 6,000. Right. Well, he's a legend and he's a lot younger than you or I. So anyway, what is it, what is the first thing you tell the parties when the first time you sit down and you meet them, let's say I'm going in there and there's opposing counsel and I want you to know... What you're really asking me if I might, what you're really asking me, what are some of the techniques that a mediator is taught that he can use in the process? Right. From the beginning, from the inception. And one of the things is to develop a relationship with both attorneys to perhaps even meet their client in their office beforehand so that you as the mediator can begin to develop a relationship with both the client and his attorney. Right. That sounds so foreign to attorneys such as I who have done cases in which the judge as compared to the mediator will never meet with the clients in their own office alone and or speak with the clients directly in the attorney's office. Again, if I might Howard, that's because you're in an adversary process versus a non-adversary process which is mediation based upon the mediator helping you look at your life and the dispute is a part of your life and is it in your best interest to carry on this dispute or to get it resolved on something you can walk away with and say I'm not happy but it's over. Right. Finality is an important factor in resolving all cases. Absolutely. Let's go on with life. We don't need this anymore. Do you get selected by the attorneys? Is that how it works? Exactly. Yeah. And then you have to decide whether you want to reside over the case? Well, of course. And if I have a conflict and I feel that the conflict will jeopardize my abilities to work with the parties I'll tell them and I'll tell them I'm thinking about declining. Right. But that happens so rarely. The same lawyers come see me over and over again and I tell them, you know, I've got a history of cases, presently I've got cases. On the other hand, that won't prevent me from being effective as your mediator. Right. You know, I was thinking about this after we spoke yesterday. It seems like in our country there's a trend, at least politically, and I won't go further than that, for divisiveness, polarization, you know, people drawing the line in the sand and being unable to have a meeting of the minds. In the legal field, particularly in the civil arena, but also in the criminal arena, it seems like there's a growing trend, almost like a ground swell of moving towards mediation as opposed to trial by combat in the courts. What accounts for this? If you have any ideas on that. Well, let me answer it this way. Society has a number of generalized concepts that are not good for society. One of them is that when I have a dispute, I should be right and then win. This win-lose mentality is not good. Particularly, we need to start with people who are having disputes and help them see that the mentality should be. Let's look at your life. And in looking at your life, let's determine about is this dispute important enough that you want to continue it? Okay. That's a very nice ideal. Do the parties usually come to agree with that premise? Or do you ever get pushed back or resistance? I don't. And you know why? I don't. I'm telling them the truth. Let's take a look at your life. Let's take a look at this dispute and let's take a look at how important is it in your life? Do you want to have it take your life over, basically thinking about it, even while you're sleeping? And that's what happens in a lot of civil situations. Absolutely. I've been doing this for 50 years. I know. Okay. So the rules of evidence that would apply in court, do they apply in a mediation context? No. There is no evidence. People talk. They can give the mediator documents. And by the way, everything that happens in mediation is confidential. So it can't be used to hurt the other party later. I see. So it's confidential, not only with the mediator, but with... If there is a document that the parties want cut that way, I as the mediator will have that bargain made. Correct. And then write it up. Good. You know, we're on a roll, but we need to take a station break. And so we'll be right back with Jerry Clay after these announcements or messages. Thank you. This is Think Tech Hawaii, raising public awareness. You can be the greatest. You can be the best. You can be the king conveyer. Now your chest. You can be the world. You can be the war. You could talk to God. Don't bang it on his door. Great other Monday here at Think Tech Hawaii. And we have special guests like Professor Colin Moore from the University of Hawaii who joins us from time to time. Who talk about the political happenings in this state. Please join us every other Monday. Aloha. Thank you and welcome back to Living Legend Lawyers, the Think Tech program in conjunction with the Hawaii State Bar Association. Our guest is Mr. Gerald Jerry Clay. Fascinating talk we've had thus far. You know, it sounds so ideal that I need to start off the rest of this program with a big question. Are there cases that are not resolvable by mediation? And that's one part of the question. The second part is, do you ever get frustrated with the parties that come before you? Please. Okay, the first question is, are there cases that can't be resolved? The answer is, of course. I mean, people can get so emotional that they can't see what's in their best interest. And as much as I will try to work with them, they still will go back to their emotional position, particularly if they have more power. I mean... What kind of power are you speaking of? Financial power? Could be financial power, could be just their presence in the community type power. Could be I've got a case going right now, which is crazy, or one side thinks the other side has done something criminally wrong, and is using that power to say, you better settle with me or I'll go to the police. You have to be careful. That's terrible. I'm the mediator, and I'm telling them, you better be careful. Right, and you know, it could be extortion. And there could be a criminal matter. Yeah, I'm not giving legal advice, but it... Okay, let's move on. Okay, and so what happens? Then they just opt out of mediation and go to the courts. Is that what happens? Yeah. All right. Why is it? You mentioned the criminal law possibly being injected into the case by the concerns of one of your parties. You know, what about the criminal law? Are there any cases that are resolvable by mediation? I understand they're constitutional issues. There are certain requirements within the criminal context that might not be resolvable through mediation. Go ahead, please. There is a mediation program for criminal cases, but it is being used, where it is being used, only on misdemeanor. I see non-felonies. Right, and there must be no violence involved. And what happens is the prosecutor brings the perpetrator, the alleged perpetrator, but the perpetrator into a room along with the mediator and along with the victim. Perhaps it's property damage, something like that. And the victim gets to look in the eyes of the perpetrator and say, you know, you've really hurt me. I want you to know what has happened because of you is I, you know, I get angry. I don't sleep at night. That's what you did to me. You know, it's just saying that I felt badly like I did something wrong to you because you say that very convincingly. And I think that's something that's missing until maybe perhaps even months or years later a victim or someone who has been proved to be a victim gets to speak up as sentencing. And usually they address the court, not the perpetrator or defendant. So that's a very interesting concept. You know, in Hawaii we have the community outreach court where the prosecutor and the defense attorney seem to be almost symbiotic in their effort to resolve a criminal problem. We've done this all over this island. You know, there's especially courts, hope probation, veterans court, drug court, mental health court. And slowly but surely it seems like the criminal law paradigm is shifting in the direction that's not exactly identical to but similar to what you're attempting to achieve in mediation. So that's wonderful. What makes a good mediator? I know you're a good mediator, so I can ask you. What makes a good mediator? First of all, there's a training where you learn a lot of techniques. And so the start is you learn a lot of techniques. Then the next thing is you got to get experience. Use the techniques so that they come naturally rather than you have to adjourn and come back after you think about it. And then I have named a certain technique that I use, the pit bull mediation technique. And that is if you think about a pit bull when they bite down on something, they're jaw locks. And you actually have to pry it open. When I look at a case, I take that same perspective. I never give up. As long as I can get the people to talk, there's a chance that somebody will begin to see something that's better in their better interest than where they're at. Okay, let me give you an example. Sure. I'm one of the parties, the party that's opposing me is looking at you smiling and nodding and agreeing with you. And I'm doing this. I'm looking down for arms folded and I kind of shake my head. How would you reach me? How would you attempt to reach me? If I seem reluctant, recalcitrant, what have you? I've got to explore that because that's going to get in the way of my being able to help somebody see what's in their own best interest. And what would you say to me or ask me? You didn't say that you said anything. You just had your arms folded as if you're spaced out. Right. So I've got to stop and say, I see I have done something wrong. You would say that? Yeah. Interesting. Because I need to communicate with you and you have to be able to communicate with me. See, that's different. The judge might say, you know, Mr. Luke, this court is speaking, pay attention to the court. I'm not saying every judge would do that. But it's interesting that you said that you must have, you would communicate to me that maybe. Can I tell you one of the most important techniques that you have to focus on to be a mediator? And that is that you have to have the credibility of being a trusted advisor friend. In order to be able to talk about not just what you're having a problem with with another guy, but what's in your best interest? How you want to continue to live your life. We have to be able to talk about that subject. And if I see that somebody is in communicating, I have to stop and see if I can repair. I think I can. Is it usually successful? Yes. That's nice to hear. I can't say it all the time, but yes. And you gave me, see, I usually work with an attorney and the attorney works with his client. And so although I have an engagement letter as a mediator that says that the attorneys can, I'm sorry, that the mediator can work directly with the client, I always get permission to do that. And sometimes, you know, the attorneys aren't feeling good about the mediator working directly with the client. Is that right? That's interesting. Well, you know, it seems that I sense that there is something that is directly proportional to more experience as an attorney. I hate to say it, but possibly getting older and experiencing more of life. That when you look at, this is a real stretch, but I'm going to say it anyway. You know, when you think about the plays of Shakespeare, How He Evolved, and went from the comedies to the really dark tragedies, but at the end of his career, it was all about reconciliation. When you look at the great, what they call the romances of tragic comedies, there's, you know, terrible things happening, and then a resolution that sounds very much like mediation, where near the end of his career and his experience and his aging process, he began to see something different. And I think that's what I sense from you. There's a light you see. I'm not saying there's a light at the end of the tunnel, but there's something that you understand about human nature, human relationships, even when they spill over into cases that could result in litigation. Can I tell you something, Howard? Please. I really appreciate your words. I do. Because I guess that's how I have evolved, you know, from being, you know, just an attorney representing somebody in an adversary proceeding to then learning how to be an arbitrator, then learning how to be a mediator. And it's, yeah, I think as, now I'm growing older, that I do want to bring this to society. It's good not only for the parties, but for society as a whole. You know, if we stop thinking always in terms of being right, you know, we face these political issues in Washington, and each side says I'm right. You know what? There is some right in both sides. It's not one of those issues where you can't say, you know, somebody doesn't have a position. And I have a feeling society should begin to recognize there's some other way of improving I'm right, and if I have to, I'll go to the Supreme Court. We need a new focus, and I think mediation, the idea of how you work something out to recognize what's in your best interest. And you know, as a human being, you're always doing what you think is in your best interest. You're always doing it except. If you're not so PO'd at somebody, then you'll do something that may not be in your best interest. Very wise words indeed. Gosh, I wish we could continue, but we're just about out of time. I feel and I sense that there's a message here that goes beyond what is of interest to attorneys who take cases to court or otherwise to mediation or arbitration. Very proven and wise words from a legend who is a living legend in the legal community. Let's hope the message can spread not only to the legal community but far and beyond nationally, internationally. The peacekeepers such as Mr. Jerry Clay are the ones who should have the final say. And I appreciate his spending time with us this afternoon. Thank you in Aloha to all who tuned in to watch this program. Thank you, Howard.