The Cincinnati Enquirer from Cincinnati, Ohio on October 16, 1991 · Page 12
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October 16, 1991

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The Cincinnati Enquirer from Cincinnati, Ohio · Page 12

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Wednesday, October 16, 1991
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A-12Comment THE CTNCTNNAI 1 ENQUIRER Wednesday, October 16, 1991 THE CINCINNATI ENQUIRER WILLIAM J. KEATING Chairman and Publisher GEORGE R. BLAKE Editor, Vice President THOMAS E. DUNNING Managing Editor THOMAS S. GEPHARDT Associate Editor DARRYL W. EVERETT Vice President, Advertising WILLIAM R. JOHNSTON Vice President, Circulation MARK S. MIKOLAJCZYK Vice President, Production JAMES A. SCHWARTZ Vice President, Finance GERALD T. SILVERS Vice President, Marketing Services A Cannctl Newspaper mm Judge Thomas The Senate's vote to confirm the nominee is the right course A better way to handle disputes the Oklahoma University Law Center without repercussions. If anything positive did come out of the confirmation process, it was an increased awareness of women's problems with harassment in the workplace whatever the doubts about Professor Hill's claims. There is also an increased awareness that something is terribly wrong with the Senate confirmation process when a nominee can be subjected to such an ordeal a "circus," as some called it. Committee Chairman Joseph Biden rightly pointed out that the position involved is one of the most important in the land. For that very reason, the hearings should have reflected the dignity of the office. Instead, they took on the tone of the worst kind of soap opera. Judge Thomas may now assume the seat that he justly deserves. He paid a high price for his confirmation, and his agony should not be in vain. The Senate must examine the process carefully and correct its obvious deficiencies. This must not happen again. The public deserves better. Nominees deserve better. The Senate itself deserves better. The Senate's vote approving Judge Clarence Thomas' elevation to the Supreme Court comes too late to leave the judge's reputation intact, but it was the one action taken correctly in a process that descended into the depths of sordidness. The Senate action neither confirms nor denies Professor Anita Hill's accusation that Judge Thomas made improper advances when she was in his employ in the Department of Education and the Equal Employment Opportunity Commission. It says only that, unable to reach a clear view of the truth, the Senate had to recognize the judge's years of unblemished service. In justice, it could not deny him. The judge, and Professor Hill, will have to live with the uncertainties that the Senate Judiciary Committee hearings engendered. As time passes, public memories will fade, but history will take note, as it always does. There, will forever be reminders. The judge, who has shown considerable courage, will undoubtedly rise above his personal agony at this ordeal to add a thoughtful presence to the court. It is hoped that Professor Hill, who has also suffered, may resume her career as a legal scholar at I City council FSW proposal raises question about the role of government They've mastered the art of exploring and developing options during the process. And they have the expertise to help participants weigh the alternatives to failed negotiations. Yet they function strictly as intermediaries rather than imposing an outcome or offering legal advice. Is such a mediated agreement legally binding? Yes. When agreements reached in mediation are reduced to writing and signed by the parties, they become contracts to end disputes. As such, they are legally enforceable. . Tradition and common sense dictate that businesses and individuals alike consult their attorneys before plunging into the legal system. When the issue requires dispute resolution, what should the lawyer recommend? On the surface, the question of mediation or litigation appears to present attorneys with a competitive dilemma. Lawyers have long defined themselves as litigators or non-litigators. But those with an eye to the future see themselves in a more flexible role: as dispute resolvers who will offer their clients a variety of options for settling conflict. They're recognizing that over the long term, they can best serve and retain their clients by offering sophisticated analysis of dispute resolutions options and recommending the most effective method to settle any given issue. In the crowded market that is today's legal field, mediation and other non-litigation alternatives offer attorneys not a competitive dilemma but a competitive edge: processes for settling disputes, when appropriate, without hassle, without the cost of going to court. Some cases excluded Of course, not all cases are proper candidates for mediation. For example, if your goal is to establish a new legal precedent, any settlement with or without mediation makes no sense. In some disputes, people simply can't reach agreement. But mediation offers the opportunity to agree on a low-cost, expeditious process to have a dispute decided by someone. Mediation cannot help speed justice, reduce legal costs or resolve conflict if we don't choose use it. The challenge now is to integrate mediation fully into the fabric of dispute resolution in this community and use it to resolve disputes in the courts, among businesses, in the public sector, even for personal matters such as divorces or parenting conflicts. BY JERRY LAWSON Guest Columnist Too many lawyers? Too many law students? Too much litigation? As I listen to this debate, I hear heels digging in all over town. It's so easy even tempting to choose sides for a long-term battle of words and wits assigning blame for our sluggish, expensive legal system. But instead of choosing sides, I suggest we choose solutions. They exist. They're proven. And they're growing in popularity. Collectively, they're known as alternative dispute resolution. Simply put, they're techniques to resolve disagreements without litigation. ' - The familiar alternatives such as arbitration and the use of private judges are beginning to enjoy a much wider acceptance. We're seeing more emphasis on negotiation and developing negotiating skills. Yet in recent years, interest in designing even more creative methods has given rise to strategies to help disputing parties evaluate their settlement possibilities, such as mediation, summary jury trials, minitrials and fact-finding. Courtrooms avoided Of these newer options, the fastest growing is mediation. Why?' Perhaps because of its broad application. Mediation offers a way to settle disputes across a negotiating table instead of across the courtroom. It works for most kinds of disputes and its effectiveness has been proven in Cincinnati. Essentially, mediation is an assisted negotiation. A neutral, trained mediator facilitates give-and-take between disputing parties. The mediator helps them develop and evaluate settlement proposals, either with or without the parties' legal advisers present. Mediation resolves conflict through cooperation instead of confrontation. It focuses on meeting the interests of all parties rather than having one side win and the other lose. Neither side can be forced to accept a resolution because settlement is negotiated and voluntary. There is no settlement until both agree to it. The participants not a judge or jury decide the terms of their agreement. They control the outcome. With that control comes the freedom to generate creative solutions, which can be very different from the remedies a court may impose. Potential adversaries can work together, preserving the business and personal relationships that can be ruined by acrimonious lawsuits. The time to reach a mediated settlement is measured in hours or at most weeks, not the years that a typical corpo- Councilman Tyrone Yates has called for a referendum on the future use of the Fountain Square West site. "It's the politicians vs. the people," he said. That sounds very grass-roots, very sympathetic with vox populi. Scratch that veneer only slightly, however, and you'll uncover one awfully illogical proposal. The people are not prepared to make a judgment on that development now. Nor will they be in May, when Mr. Yates wants the issue on the ballot. This is not an elitist position. It is simply a reminder, if one is really needed, that the Fountain Square West development was, is and will continue to be a very complex matter too complex to be decided by a Committee of the Whole City. The Yates proposal is reflective in extremis of a current trend in politics. Citizens committees have become a mainstay in government affairs. They can be a real blessing. Cincinnati, for example, has benefited greatly in just the past few years from the Smale Committee's report on infrastructure; the Year 2000 Plan revision, directed by Nelson Schwab and Thomas Laco; and, most recently of course, from the Buenger Commission report on the Cincinnati Public Schools. But these examples are special. They represent a city's calling on its Jerry Lawson ... a chance to reduce lawsuits rate case can take just to get to trial. For example, the Center for Mediation of Disputes in Cincinnati mediated 102 business disputes since its founding in 1988. The median time spent in cases reaching settlement: just five hours. Avoiding a drawn-out court hearing translates to tangible savings. Mediation can help companies reduce their legal bills. It also saves them the time lost from productive work when executives and management focus on litigation instead of business. Mediation promises significant benefits. But can it deliver? To answer that question, the Cincinnati Bar Association created the Center for Mediation of Disputes in 1988 to conduct a three-year demonstration project in cooperation with the Hamilton County Common Pleas Court. When the project ended in August this year, two of every three referred cases had reached settlement through mediation. Of the business cases, three of every four came to agreement. Many kinds of business disputes can be mediated successfully. They can range from disputes with suppliers who have provided defective products to construction conflicts involving architects, engineers, general contractors and subcontractors. They can include disputes arising under acquisition or merger agreements or when partnerships break apart. They can arise in collective bargaining between companies and unions and in various other contract arrangements. Successful mediation depends heavily on the skills of the mediator. Those who are most likely to forge agreements have extensive training in the negotiation techniques that lead to a "win-win" outcome. t Q The only person who fingered Bill Casey was Oliver North. J J Meese, who still believes that Bill Casey did not have knowledge of the diversion of funds from the Iranian arms deals prior to his conversations with Regan and Meese on Nov. 24 and Nov. 25, 1986. The sale of arms to Iran was obviously known to the officials involved and was the subject of an official "finding" signed by Reagan. The diversion of the profits from the Iranian arms deals to the Contras was a closely kept secret. The only person who fingered Bill Casey as the mastermind behind the diversion was Oliver North and he did so only after Casey was dead. That was approximately six months after North disclosed his involvement in the Iran-Contra affair to the attorney general at the time, he never mentioned Bill Casey and six months after the early morning meeting, at which my father was' shocked by the revelations presented by Meese. To date no one else has spoken of best and brightest to do a careful, thorough study of a complex subject. There is another, less attractive side to the coin. And that is the side that came up when Mr. Yates made his flip proposal. Asking the public to vote yes or no on a park at Fifth and Vine is unfair. The city has $43 million invested in the site. But that doesn't begin to cover what must be known to make a good decision. What about debt service? Duration? What is the level of developer interest? Could the site be divided into half park and half building? Are there other development possibilities still in the preliminary talking stages? Mr. Yates seems to have given in to a temptation that trivializes the role of elected government. He and his colleagues on council are there to act as agents of the people. They are picked to serve because their judgment is trusted. They are paid to be more familiar with the details of the full range of public issues than the voting public has time or resources to be. The issue here is leadership, which should be understood as the willing ness and ability to make difficult, informed decisions in behalf of the public. City council either must do that, or admit to being superfluous. of improvement market whim for larger, thirstier vehicles. Conversely, statistics like EPA's can generate reactions that could be crushing to the entire automotive industry. The Senate is preparing now to debate legislation that would mandate 40 improvements in fuel efficiency by the end of the decade! Conservation is not something to be practiced only when lines appear at the gas pumps. There must be steady efforts toward reductions that are both technologically and economically feasible. There is no cause for panic in the EPA's figures. But there is plenty of room for improvement. Casey unaware of Contra deal Gasoline Latest EPA figures leave room Jerry Lawson is executive director of the Center for Mediation of Disputes. an earlier disclosure to Casey. It is my belief that Bill Casey honored the Boland Amendment. He would not be involved in the diversion of funds because, first and foremost, he was a lawyer with a deep respect for the law. During the recent confirmation hearings on Robert Gates' nomination to be CIA director, a lot has been taken as fact by the senators concerning Bill Casey. Granted, my father was a tough taskmaster. He wanted the CIA to be the best it could be and thought it was the best. He was a genius at asking the tough questions. Bill Casey had a brilliant and open mind. His mind could be changed, but you had to have the facts to do it. Indeed, I believe it was the tough stance that the Reagan administration took toward the Soviet Union that pressured the world to change and gave all humanity the chance for greater freedoms. You see, the fall of communism was Bill Casey's ultimate goal. Thanks, Dad. Bernadette Casey Smith is the daughter of the late CIA director William Casey. She lives in Laurel Hollow, N. Y. BY BERNADETTE CASEY SMITH Newsday Will someone please tell me who told Bill Casey of the diversion of funds from the Iranian arms deal to the Nicaraguan freedom fighters (the Contras)? My husband and I were staying at my parents' home in Virginia on Nov. 25, 1986, when then-Attorney General Edwin Meese came at dawn to give Dad the complete Iran-Contra story that he had heard from Lt. Col. Oliver North. Meese had briefed President Reagan concerning these facts the evening before, and then-White House chief of staff Donald Regan called and alerted my father to the situation. My husband, Owen Smith, made coffee for them. Owen had been associated with my father for some 20 years before we were married, in his law firm, in politics, as a friend and confidant. I am an only child who had a very close personal friendship with both my father and mother. My father was my parent and pal. After that early morning meeting, it was, and is, my husband's and my firm belief that Bill Casey heard for the first time the details of what is now called the Iran-Contra story. This summer we spoke with Ed for a great deal There is nothing to be pleased with in the news that automotive fuel efficiency has decreased this year. The Environmental Protection Agency reports that overall average fuel consumption in all 1992 models is 27.5 mpg, down from 27.8 mpg in 1991. This is the worst showing since the mid-1980s, but generally reflects a trend: 1992 is the sixth consecutive year with little or no reduction in the mileage figures for new automobiles. What's troubling about the '92 figures and the trend is the likelihood that they will trigger overreactions. It would be foolishly short-sighted, for example, to accept the idea that there is ample petroleum to cater to the X

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