TO LITIGATE OR NOT, THAT IS THE QUESTION
As this issue is going to press, the trial between Dominion Voting Systems and Fox News is one of the big stories we are watching. After the delay of the start of the civil trial in Delaware causing much speculation about possible settlement, the trial went forth on April 18, 2023.
A number of us in the Alternate Dispute Resolution field are perplexed that this matter has even gotten this far. As well known by many readers and professional practitioners of dispute resolution, a simple distinction between what we dispute resolvers do and what practicing lawyers and litigating parties do is not necessarily to convince a judge, jury or arbitrators that their position is true.
In our CMC trainings we say that mediation (which may or may not follow negotiation) is not a quest for truth, but rather is a quest for resolution.
Parties who are sincere about finding resolution will look seriously at alternatives to litigation (or binding arbitration).
Sometimes, there exists an important point in having the ruling of a court or arbitrator in a matter. Let us say, that an insurance company wants to make it clear that they will never pay a claim like the one presented. They must have a ruling on the matter and need to prove their point which could preempt future, similar claims. Or a news organization is making the point that they are merely reporting on the news – and not supporting any side in the fact situation presented. As such they may have a point that has to be made and might become a binding judgement (from a future court looking into similar facts).
People sometimes go to lawyers – same as they might also go to doctors, plumbers, engineers to get answers to a problem. This in a way is a search for truth. It always results in the best estimate of an outcome from the professional. These people may not want an opinion or to gamble with whether or not the person they are asking is right. But, they do want that person’s best professional opinion. The opinion may then become that person’s “position” on the matter. So, they go to court to fight out who is going to prove the other side’s “position” is incorrect. It may stand, or may not. There can be an appeal – even a later settlement.
The Conflict Resolution field does not look at who is right, but tries to do their best to empower a resolution which is best for both parties.
If transaction costs (legal fees, engineering reports, expert witnesses and time) may be a factor, chances are that resolution is better than a win (although going forward to prove a point can result in a loss also).
If, on the other hand, the matter is presented to a qualified mediator or team, resolution can come much quicker and with less financial and emotional cost.
This short piece is written by a former litigator. People came to me because they thought I could WIN and that the other side would then LOSE. If I thought I might lose, we looked at settlement possibilities. I never liked that possibility. I liked winning and my law clients liked that also. Even then many cases settled. It just took longer and cost the parties, on both sides, additional money and pain.
We have just learned that the case of Dominion Voting Systems v Fox News has been settled! That settlement, and the high price to be paid by Fox, prove the point of the article.
NATIVE AMERICAN PEACEMAKING AND MEDIATION
Beginning with the next issue of this newsletter, we will be bringing readers a series of articles on peacemaking and mediation as practiced by tribes of indigenous people for many years in the past – and today. They should be of value to all in the peacemaking, justice, negotiation and conflict resolution fields.
The articles will be written by two accomplished writers and activists committed to peacemaking: Martha Davis (Lenni-Lenape, Delaware, Munsee Native American), a retired interfaith minister formerly with the Wittenberg Center for Alternative Resources, and Lisa McQuail, a former archeologist and anthropologist, now government contractor. This series will also be part of a published report on 800 Years of Native American Peacemaking.
SHOOTINGS AND DISPUTE RESOLUTION
The heartbreaking news is that there are literally so many shootings in America that the topic now appears as a regular feature of this Newsletter. Sadly, America now tops the list for having the most guns and most shootings among all democratic nations (MSNBC 4-18-23). In this issue, there are so many shootings, we have to choose which we will be talking about. We deal in this issue with the situations in Louisville, KY, Nashville, TN and Dadeville, AL. It’s not just naïve wording when we say that most, if not all, disputes can be resolved in a non-confrontational way. This is especially true when the shooting is based upon incorrect or false information – such as the wrong address – or even - underlying racism. The events in small Dadeville, Alabama show us that there seems to be no escape from guns and the disastrous, often deadly, results of shootings. Apparently, living in a small town is no escape from this menace. Words – even harsh words – can be resolved even the most painful issue – and they are far less toxic than bullets. Those of us on the CMC Team and many others truly believe that. people can resolve almost any issue – if they could only find a way to use “words instead of weapons”. If we did not believe this to be true, we wouldn’t be in this field. CMC has even reached the point where we have outlawed weapons in our mediations, facilitations and training.. Our firm and so many others in this great country don’t have answers, but we sure do have questions. -- CMC Staff
DEATH OF A WARRIOR
On April 1, 2023, we all moved into a new month. We all hoped Spring would soon come forth and Winter’s snow, rain and bleak days would be behind us. We were not ready for surprises , but we got one anyway. Sadly, we learned of the death of a friend – a warrior of many faces.
J.C. Herbert Bryant passed away on April 1, 2023. His stamina was terrific. He had come back several times from what seemed to be a life-threatening disease. In fact, he had faced death so many times – as a sailor undertaking dangerous work shipside on the water and underwater as a frogman, as a race car driver, as a law officer confronting criminal drug king-pins, and as a clandestine operative whose work took him to many places we have heard of and many we never even knew existed,
He was controversial. Many people could not believe any one man could possibly have done so much; therefore many people thought he must be exaggerating. Truth is – he was living an almost fictional life, yet always thinking about what would be best for his country.
Herb Bryant (sometime also known as “JC”). thought his life adventures might make a good story. He was so right about a good story. The Paranoia Factor written by Alan Peters, was published in 1999 re-telling J.C. Samson Lockhart’s exciting life as a Deputy Sheriff in Palm Beach County – among the halcyon days of a huge drug push. That story seemed unreal, but it was true.
I was complimented when Herb called me and suggested I might write about his early Navy days, his trips into the jungle to meet Cuban rebels at the time – including Fidel Castro, and other adventures including in the Mediterranean, Africa and Venezuela. He and I met often during 2019, the year that I wrote A Warrior of Many Faces: An American Clandestine Operative in Castro’s Cuba and Beyond. That book was published in November 2019.
Sometimes Herb and I didn’t agree on how the incidents would be portrayed in the Warrior book. We danced close to the national security edge a few times, but he knew I was relying on him to clear what I was about to write with the appropriate organization. If ever I questioned how he could have accomplished so much, he would show me a certificate of merit or a military ribbon he earned with an official government agency imprint. I even saw photographs of ships and other memorabilia he had in his den from his many adventures.
He and I talked about the art layout for the Warrior book. I wondered about using his real name in the book as it was designed to be fact-based-fiction. Ultimately, I did change many names and places to protect the real people involved.
Finally, we decided to put his photo on the book cover. It had been taken some years ago in a different clandestine operation. I am now so glad we did. He named the book. He had heard about a Chinese warrior who had changed faces in many battles he had fought.
This modern American warrior wore so many hats in his years of service.. Maybe, Herb didn’t really have to ever work as he was part of a well-known Virginia historical family.. Yet, he was happiest when he could “soldier on” for his beloved United States of America.
It almost seemed as if Herb had some magical power and that he would never die – but sadly, he did. Alas, he was human after all – and illness finally caught up with him.
Thankfully, his lovely wife Weijing and adorable daughter Margaret and other family he so loved will have the memory of a giant.
I will miss our lunches together, our arguments over wording of paragraphs, his glorious stories of incidents all over the world – and, most of all, him.
News From LALO Publishing
As sole source for manuals and the basic training books, IRONING IT OUT:SEVEN SIMPLE STEPS TO RESOLVING CONFLICT and EFFECTIVE NEGOTIATION IN SEVEN SIMPLE STEPS. LALO Publishing, Inc. (LPI) is gearing up for new programs in 2023 including final preparation of PRINCIPLED CHOICES: AN ETHICS GUIDE FOR MEDIATORS AND OTHERS. LPI continues to offer all of its publications through the CMC website, Amazon and select bookstores. The recent death of J.C. Herbert Bryant (noted above), an almost meteoric personality, touched many lives in the United States and abroad. Stories about him and his adventures seem fictional, but as related Charles Lickson’s fact-based-fiction book, A WARRIOR OF MANY FACES: An American Clandestine Operative in Castro’s Cuba and Beyond, they are basically true. Charles Lickson, CMC’s President and accomplished writer, commented on learning of Herb Bryant’s death: “I hope he will live on in books about his life: The Paranoia Factor by Alan Peters (Loft Press, 1999) and A Warrior of Many Faces, by Charles Lickson (LALO Publishing, 2019). At this date, COVID is not the menace it once was, but it is still with us. Sepsis, so unknown to many people worldwide, continues to be a potential killer. Todd Denick’s important book, IT WILL COME: ALASKA ADVENTURES PALE IN COMPARISON TO SURVIVING SEPSIS (LALO Publishing, 2021) is as timely as ever...
Available and upcoming titles from LALO Publishing can be seen at
https://www.lalopublishing.com/titles and https://www.lalopublishing.com/upcoming-titles