An Interview with Dale A. Crawford

DALE A. CRAWFORD is a partner in the Columbus, Ohio office of Shumaker, Loop & Kendrick, LLP. He specializes in litigation, litigation consulting, arbitration, mediation, and private judging. Mr. Crawford has over 30 years of litigation experience, including 24 years as a judge in the Franklin County Ohio Common Pleas Court and three years as judge of the Franklin County Municipal Court. Mr. Crawford has presided over 800 jury trials (civil and criminal), 15,000 felony cases, and 10,000 civil cases. Prior to Mr. Crawford's election to the bench, he was in private practice and was also the Personnel Director for the City of Columbus Civil Service department. He was a professor at Virginia Tech and has taught at Ohio State University Moritz College of Law, Capital University, Ohio Dominican College, the Ohio Judicial College, and the National Judicial College. Mr. Crawford has also lectured at more than 50 legal and judicial continuing education conferences. Mr. Crawford has served as Senior Assistant City Attorney for the City of Columbus. As lead counsel, Mr. Crawford has appeared before the United States Supreme Court, the Sixth Circuit Court of Appeals, the United States District Court, the Ohio Supreme Court, and local Common Pleas Courts and Courts of Appeal. Mr. Crawford has received many awards from the Ohio Supreme Court for Superior Judicial Service, and was appointed by the Chief Justice of the Ohio Supreme Court to represent the State of Ohio as a delegate to the American Bar Association Judicial Conference. In addition to his litigation schedule, Mr. Crawford is the Chief Legal Correspondent for WTVN radio in central Ohio, and his website articles for the station can be accessed at www.wtvn.com.

Mr. Crawford wrote an article for Shumaker, Loop & Kendrick's Insights publication titled "Is ADR a Panacea?" In a recent interview with the Editor of the Mayhew-Hite Report, he shared his insights on many aspects of Alternative Dispute Resolution.

Judge Dan Aaron Polster of the United States District Court for the Northern District of Ohio wrote an article that appeared in the Mayhew-Hite Report earlier this year in which he argued that trial judges can be extremely effective mediators if they adhere to some ethical ground rules (including that the judge obtain the consent of both parties). Do you think that judges can effectively facilitate settlement between parties, or do you believe that a judge should stay removed from settlement discussions and leave the parties to deal with ADR professionals?

I believe that a judge certainly has a role to play in the settlement process. The extent of the role played by a judge varies on a case-by-case basis. However, any judge who actively gets involved in settlement to the extent that he/she mediate the dispute could have difficulty being a fair and impartial jurist if the case ever goes to trial. It remains an unresolved issue where the line should be drawn for judges and what conduct will prohibit a judge from being impartial at trial. I believe that if a judge does not make recommendations about the case and is only a facilitator of discussion, then there is no problem with judges getting actively involved with settlement. Whenever a judge moves beyond facilitating a dialogue between the parties, it would be more prudent to involve a magistrate or other Alternative Dispute Resolution personnel connected to the court.

During your time as a judge, did parties ever want you to provide that extra push that would lead to settlement?

It happened in almost every case - the parties seek resolution of their dispute and look to the judge to provide the extra push that will avoid trial. Clients typically place more confidence in a judge's view of the case rather than that of their attorney, and talking to a judge can provide the parties with a more realistic perspective than they had before hearing from the judge. Another important consideration is that attorneys very rarely want to try a case. Of the thousands of civil cases that I presided over as a judge, 85% of them were resolved by the parties prior to the trial date. Of the remaining 15% of civil cases, 95% of them were resolved by the parties on the day that trial was scheduled to begin, mainly with my help. The remaining cases went to trial because a settlement was virtually impossible without the intervention of a judicial factfinder.

As part of your practice, you also serve as a mediator and an arbitrator. In your article "ADR as a Panacea," you note the difficulties associated with the use of binding arbitration to resolve consumer disputes. When you mediate or arbitrate, are there any steps that you take to maintain a balance of power between the parties? Do you feel like mediators and arbitrators have a responsibility to protect the more vulnerable party in the proceeding?

I think that one of the main problems associated with arbitrating consumer disputes is that consumers can feel that they are owed more by a company than what would make them whole under a legal standard. In a dispute involving a consumer, the arbitrator has to be careful to explain his/her decision in a way that the consumer can understand, and one way to achieve this could be through the submission of a written decision rather than an oral one. Oftentimes lawyers also have an unrealistic view of what their case is worth, and this belief is often conveyed to the client and the client then becomes unhappy with a verdict that is reasonable in the eyes of the law, but that does not match up to their expectations. When attorneys lose in court or in an ADR process like arbitration, they often point the finger at the factfinder instead of examining their own case. This can create great problems for the credibility of the process used to resolve the dispute.

When you serve as a mediator or an arbitrator, do you try to consult with the parties to determine the best format and rules to follow to lead to an effective resolution of the dispute, or do you see your role as implementing a design that the parties have reached themselves?

Generally speaking, mediators and especially arbitrators have set processes that they follow in handling a dispute. Parties want the mediator or arbitrator to follow his/her typical process because they have determined that independent help is needed to settle their dispute. In many cases, if the parties themselves control the ADR process, it may be less effective. As far as mediation is concerned, if the parties specify certain aspects of the process, then the mediator should certainly try to accommodate them. For instance, parties may specify whether the mediator should talk to the parties jointly or privately, whether the mediator should suggest results, if a written report should be issued, and if ex parte communications with the parties after the mediation are to be permitted.

During your time as a judge, did you notice a resistance to mediation or arbitration from any identifiable category of people? For instance, did plaintiffs resist ADR on the grounds that they had been "wronged" and deserved a day in court, or because they felt that ADR could result in a lower settlement than could be achieved through trial?

In cases where plaintiffs did not expect a large monetary settlement, I often noticed a resistance to using a form of ADR due to a concern that the costs involved would be subtracted from their settlement. In cases where plaintiffs expected a large monetary settlement, like when medical malpractice had been alleged and when there appears to be a good chance that the defendant would be found liable, the plaintiffs' attorneys almost always feel that a jury would award more money than they could obtain in a settlement reached through ADR. On the other hand, defendants, especially insurance companies, almost always want to pursue mediation or arbitration. They feel the ADR verdicts will be lower than jury verdicts. In disputes between businesses where large sums of money are at issue, most parties should seek to resolve their dispute through some form of ADR because of the high cost of litigation.

In your private practice, is ADR something that clients are already familiar with and want to learn more about from their attorney, or is it more likely that the attorney first informs the client of the possibility of resolving their dispute through ADR?

ADR is well known in the business community, and larger companies, both public and private, are very familiar with ADR. As far as small businesses are concerned, the attorney typically has to inform the client about formal ADR options. Lawyers involved in small business disputes usually don't get together in advance of litigation to suggest a resolution of their dispute through binding arbitration, which would avoid litigation entirely. ADR can be very expensive, especially when it is used in a case that is already in litigation and binding arbitration is not used appropriately to avoid litigation. Prior to any form of litigation, large or small, ADR should be discussed among the attorneys and with the clients.

Given that parties can use a contract to designate who will arbitrate their disputes, the rules to be followed, and almost every other feature of the process, are there situations when business disputes should not be resolved by arbitration?

In most situations where parties are involved in arbitration, there is no contract governing the arbitration. This is especially true in personal injury and medical malpractice cases. Only in large industries like construction and securities is arbitration contracted for in advance of a dispute. That being said, in disputes where one party is totally opposed to any settlement or payment and feel they have not done anything wrong, arbitration or mediation would be a waste of time and money. Arbitration works well when the parties are disposed to resolving their dispute and a large amount of give and take is involved.

The Federal Arbitration Act (FAA) makes it very difficult to overturn an arbitration award. Is this something that makes clients reluctant to enter into arbitration, or do they feel like they know what they are going to get with arbitration as much as with a trial? Does the Supreme Court's precedent on the FAA push clients towards non-binding arbitration rather than binding arbitration?

The beauty of arbitration is its finality. In contrast, a material problem with litigation is that it never seems to end. Knowing in advance that there is no appeal in arbitration is a double-edged sword. If you feel the arbitrator has got it wrong, then there is no appeal and you are upset with the lack of review. However, arbitration is great when you feel that the arbitrator has got it right. Business people who are involved in multiple drawn-out disputes will typically be very pleased with the overall results of ADR. They realize that you can't win them all and oftentimes in the court system, there are no real winners. The economic and time efficiencies of ADR can be extremely beneficial to all involved. ADR can also benefit the country as a whole by allowing the courts to hear more pressing criminal and civil cases.

A topic of debate for many ADR scholars is whether non-lawyers should be permitted to act as mediators. In your experience, do clients and parties to lawsuits want someone with legal expertise to serve as their mediator, or is it more important to them to have an experienced mediator regardless of whether that individual is a lawyer?

I'll address arbitration as well as mediation in my response. Many arbitrations are performed by more than one person; a three person panel of arbitrators is fairly typical. In complex business disputes, nonlawyer arbitrators who have expertise in the field can be very useful, especially when lawyer arbitrators don't really understand the fact of the dispute. In mediation, when the dispute does not involve legal complexities, I don't believe it is necessary for the mediator to be a lawyer, but the individual should have mediation training. Just because someone is a lawyer doesn't necessarily mean that they will be a good mediator. Lawyers often get involved with mediation because they are lawyers and not because they have any formal mediation training. Generally speaking, if a dispute primarily involves a disagreement on facts, I don't see a problem with nonlawyers serving as mediators or arbitrators so long as the individuals are suitably trained.

An oft-touted benefit of ADR is that it preserves relationships that can be irreparably damaged by litigation. In your experience, do parties who mediate or arbitrate contentious disputes manage to work together after their dispute has been resolved, or does resolution of the dispute through ADR have the same effect on a relationship as decisions made by judges or juries?

To use divorce as an example, mediation is an extremely effective dispute resolution tool. When divorce issues are resolved by a factfinder, this can cause an incurable friction between the parties and anyone connected to the parties, especially the children who have to deal with a strained relationship forever. Resolution of business disputes through mediation, as opposed to arbitration, has the ability to maintain relationships over time, and this is a factor that parties should take into consideration when looking for a way to resolve their disputes. If the relationship will potentially lead to more disputes in the future, and if the relationship will be ongoing, then some form of ADR is probably the best option to resolve the dispute.

Many people who are engaged in disputes want their attorneys to be "pit-bulls" who will aggressively defend their interests, filing every motion possible and challenging their opponent's every move. How does a lawyer convince a client that mediation, a process that is supposed to be facilitative and for the benefit of both parties, is right for them? Is the cost savings often the primary motivation, or is it necessary to convince the client that their case is not a "sure shot" winner, as they would likely want to believe?

I find that some lawyers don't sit down with their clients and discuss the economics of filing a lawsuit. By economics, I mean the financial costs involved with filing motions, taking multiple depositions, retaining experts, and appealing, as well as the time that it takes for lawyers to prepare a case and go through trial. At the end of the day, very few clients are happy with their legal bills and don't believe that the costs associated with litigation are reasonable. If lawyers would spend more time explaining to their clients all the costs connected with litigation as opposed to ADR, then ADR would be used much more frequently.