When the Hon. Daniel Weinstein started out in mediation, people thought it was ‘meditation’
Published in 2013 Northern California Super Lawyers magazine
on July 8, 2013
Updated on February 22, 2017
Q: Why do so many judges end up becoming mediators?
A: With the explosion of mediation, there was a large need for mediators in courts around the country, because almost every civil case today gets mediated. The natural people to be mediators were people who have been working in the judicial system all their lives; who, as part of their work, were trying to settle cases. I think it’s just a natural fi t. And it’s better than the [retired] judges sitting around all day watching Oprah and driving their wives crazy.
Q: You were a pioneer in the field.
A: We were Lewis and Clark. Three of us, primarily, left our judicial posts: Jack Trotter, Coley Fannin and myself. We joined [Judge] Warren Knight back in the mid-late ‘80s, to start JAMS [then called the Judicial Arbitration and Mediation Services]. It was the right time and place. In the 25 years that have ensued, JAMS has become the leading provider of ADR services probably in the world.
Q: So you were really a founder of the movement.
A: I like “pioneer” better. It makes you sound younger.
Q: How were you able to predict the trend in alternative dispute resolution?
A: I wish I could claim such prescience. I actually had been on the bench for 13 years. I loved doing settlements. I was in a civil court backed up with asbestos trials forever. I saw the opportunity to go out and do something that was proactive and productive, and kind of new and creative. We took a complete gamble. Most people thought mediation was meditation.
All of the lawyers were resistant to it. It was actually the insurance industry and general counsel in the companies that promoted ADR and mediation, because the legal expenses were so great. We didn’t know at the time that it was going to be successful or that mediation was going to become so popular. We just took a chance. When we started, we just all loved the settlement process and mediation, and we thought we’d try it, but we didn’t know whether we would be looking for our next meal.
Q: How long did it take before it really got going?
A: It was almost instant. I mean, the courts were … well, there was no room at the inn. And there was an interesting move in the courts to try to handle their overflow. The courts of Texas, Florida, California led the way, requiring a lot of cases to go to mediation. Once it took off in the legal community, there was enough work out there for lawyers to do that they could settle cases and still have a good menu of cases back at the offi ce. And they could bring home the bacon early to their clients. It was a great system. Once people got the fl avor of mediation and saw all the different ways it could be used, it became a phenomenon.
Q: So what do you make of the criticism that there’s too much pressure to settle matters out of court these days?
A: Trial lawyers who want to try cases still can try cases. Do I think that there is undue pressure in the civil system at times to settle things rather than to try them? Yeah, I think there is a legitimate criticism that we, especially in the fi nancial world, don’t try enough cases. There’s not enough landmark [case law] out there. And most of the price tags for cases are no longer set by juries. In a larger business and fi nancial world, and even in consumer and antitrust cases, they’re set by settlements and mediations.
And there’s a cadence to whether that’s good, or whether the jury system should be really setting these benchmarks. Is that a better way in those kinds of cases? That’s a fair debate. At times I think some lawyers feel there is too much pressure to compromise. But I think that’s the vast minority of cases.
If you saw the number of cases we get that, in the past, would go on for five years, with millions of dollars of legal fees and people being dragged along in the system forever; and the pressure and the dissatisfaction that caused; and that [now] a large number of those are resolved early in a fair manner through mediation; and that it was necessary to force the lawyers into the tent of discussion, I think you’d see that the criticism, while valid in a small minority of cases, is just not, systemwide, a valid criticism.
It’s voluntary. Mediation is voluntary, and in the end people don’t have to agree. If courts order it, then parties have to go and show up, yes. But they don’t have to agree to anything. They just have to be there.
Q: That’s in mediation, right, but not arbitration?
A: Yeah. That’s a whole different world. I only arbitrate one or two cases a year, so over the last 25 years, 1 percent of my work has been arbitration.
The ADR system itself is a wonderful system of alternatives to a very expensive, time-consuming and often arbitrary system, the public system. But the two systems depend on each other. We couldn’t survive without a vital public system. So it’s very important that the public system be vital and kept funded.
Q: What do you miss about being a judge?
A: I miss the human contact on the bench of the real people who came before you: the cops, probation officers, public defenders, and the little people that you came into contact with in their lives. I’ve been removed from that a lot by being in the financial world. While it affects a lot of smaller people’s lives, I’m not dealing directly with them. Most of the time, I’m dealing with sophisticated media lawyers, or entertainment lawyers, people like that and their clients, who are generally CEOs or movie stars, or officers in banks. And I miss the fact that the emphasis on the bench was less on monetary outcome and more on issues of justice and due process … although “filthy lucre” is a big part of what goes on in the civil system, also.
Q: Can you tell me about a case that stands out for you?
A: I’ve been involved in Enron and Adelphia, and all these very large fi nancial collapses; the mortgage industry—Countrywide. [But] I did the Rosa Parks case, [which] stands out for me.
Q: Rosa Parks’ family objected to some wording in the song Rosa Parks by OutKast?
A: Right. Just dealing with the woman who was probably the greatest living woman in America at the time, I mean, a legend in America; and to have on the other side a worldwide famous hip-hop band and the best First Amendment lawyers in the country … and to come out of it with a productive resolution was a great experience. The resolution was to take care of Rosa Parks. She died shortly thereafter. But [it did] take care of her medical problems and some of her tax issues.
The band [agreed] to do some concerts and things that were dedicated to the works that Martin Luther King and Rosa Parks and that civil rights generation had produced. The band members themselves recognized that their audience, many of them, had forgotten to honor and appreciate what people like Rosa Parks had done for them.
Q: Other riveting cases?
A: I mediated in Bosnia between the Serbs and the Croats. I’ve mediated the Burmese gas line cases: the Burmese and Cambodian people against Union Oil. I’ve done a lot of work in South America with the indigenous people. We’ve had cases, really, all over the world. So I’ve been very lucky to be treated to a week, or three days, or two days, or sometimes one day of a very exciting controversy with the best lawyers in the world. They have to synthesize it and make it concise.
For a dilettante like myself, it’s the perfect profession. You get a surface knowledge of a lot of things. I think if you tried to get an in-depth knowledge of every case, you would explode from information.
Q: You’re from Chicago originally, then headed West to Stanford, and back East for your J.D. What was your experience like at Harvard Law School?
A: I was always sneaking off to go camping and fishing and get back to the West Coast. I was always trying to get out of there. The day I took my last exam, I got in my little Volkswagen and drove back across the country to be on the West Coast and be outside. So I never really became a part of the Cambridge culture. I admire the institution. … I satisfied my father and mother’s desire that I go to Harvard.
Q: Other than mediation, what do you enjoy doing?
A: I have two abiding interests, and one is the outdoors. I’ve all my life been interested in kayaking, fl y-fi shing, mountain biking; and as long as my body parts allow me to do it, I will do that. I just fi nished building my dream cabin at 8,000 feet in the wilderness of Colorado, and I intend to spend as much time there as I can.
My other interest is kids. Ever since my juvenile court work, I’ve always been involved in kids’ programs and youth programs. I run a number of nonprofits that I’ve started or been the president of for years that involve disadvantaged kids. One is [called] Seven Tepees. And then I have a program that I funded and started at JAMS called the Weinstein International Fellowship. We bring over 10 people from different countries every year for anywhere from three months to a year, who study under our mediators, then go back to their countries. Many of them are the pioneers for ADR in their countries. We now have 40 of them around the world in 37 different countries. They’re amazing, what they have accomplished since they have gone back. We have 10 more coming this year in September. One’s from Egypt, one’s from Afghanistan, one’s from Iran, one’s from Israel, one is from Turkey, one is from Pakistan. Some of them are just the hidden heroes and heroines of mediation around the world.
Q: That has to be a huge source of pride.
A: They have all become like my sons and daughters.
Q: Can you tell me about the Holocaust restitution cases?
A: There was a move around the country to waive statutes of limitations and allow people who had claims against various countries to bring them, and to seek restitution for losses of their family. Some very creative lawyers—one of them was Mel Weiss, a famous class action lawyer—did very creative work in finding pockets of recovery for people who were Holocaust victims, and to bring them, even in their very later life, a modest amount of restitution so that they could at least have some financial comfort in the last part of their lives.
It was a time when the legal system became flexible in a very innovative way. It can do some creative and wonderful things. Lawyers get a bad rap on all sides today for being self-serving, and there are a lot of stereotypes about lawyers that are negative. There are still lawyers out there doing good work: keeping the business honest, making sure that there’s deterrence against companies’ abuses, representing little people, seeing that everybody gets a fair shake. Lawyers are still the glue that keeps this country together in a country where we have a wonderful system of contracts and a rule of law.
I have a great admiration for the lawyers out there doing pro bono. There are lawyers still there to defend people who are about to be executed. There are lawyers doing very creative and innovative work cross-culturally. It’s not all self-serving. There are still a lot of lawyers out there doing great stuff.