Stew Cogan Takes Sides

Q: What’s so appealing about ADR?

A: I see lots and lots of different kinds of disputes, literally thousands of them. As a mediator, when you begin a case, you receive materials from the lawyers, and you read those materials. It may be about an area of law you know something about or nothing about. Typically the mediations are over in a matter of weeks. Arbitrations can last a lot longer. But you’re in it, and then you’re done with it. As a lawyer, you spend a lot of time working a deal, working on a case. So the turnover is refreshing.

[But] one of the challenges of mediation is dealing not only with the specific legal dispute that’s involved, but also with the baggage that people bring to the legal dispute. It’s become apparent to me over the years that the longer people have been involved with one another and the more intense their relationship, the more difficult it can be to help them find a way out of it.

People who have been business partners, people who have been in the same firm together, people who are family members, people who have been neighbors for a long time bring so much history with them to the mediation that it makes solving legal disputes so much more difficult. Because it’s not just about that legal dispute; it’s about 40 years of history.

Q: You switched from business transactional work to ADR in 1996.

A: One Friday I was a lawyer, and on the following Monday, I was an arbitrator and mediator.

Q: But you had done arbitration work for a number of years.

A: In the 1980s, the dockets were pretty crowded here. King County adopted a mandatory arbitration program. They allowed lawyers who had practiced law for five years to hear these. I had just been practicing five years, so I satisfied that qualification. I started doing more and more of that as people started to think of me as an arbitrator.

Q: When you first came to Seattle, you were in business law at Davis Wright?

A: They weren’t highly departmentalized at the time, so I did a lot of different things, a lot of research and writing. Some litigation, which I did not like. I was not a litigator. So I elected to do business and corporate law.

I stayed at Davis Wright [except for some time spent traveling] until 1981. [Then] I started a firm with a good friend of mine by the name of Larry Mills. I stayed at that firm for about 15 years. I told my partners that I was going to, at some point, stop being a lawyer. I gave them five years’ notice that I was going to be leaving.

Q: Certainly seems fair.

A: Toward the end of that time, I had to decide, “I’d better figure out what I’m going to do.” I talked to a career counselor and read books, and ultimately decided that I could perhaps make a living as an arbitrator and mediator.

Q: Any regrets?

A: Couldn’t be happier.

Q: Before opting for law school, you attended Berkeley. What was that like in the early ‘70s?

A: It was a fascinating time. The Vietnam War was not particularly popular. There are pictures of me from that era with long hair and a beard. I still have some of the armbands that I wore when I monitored marches.

Q: Monitored marches?

A: Volunteers would sign up to make sure the march was not disruptive.

Q: Did you do any marching?

A: Oh, yes. I was very supportive of the marches. Berkeley was a very active place at that time. There was a lot going on. It wasn’t all left-wing; there were a lot of very conservative factions at the university as well. It was a great experience being there at that time.

The problem was, I was a political science and sociology major, which made me virtually unemployable. My girlfriend in college said, “What are you going to do when you get out?” I said, “I don’t know.” She said, “Why don’t you take the LSAT?” I said, “Why would I want to do that?” She said, “What else are you going to do?”

That’s literally why I took the LSAT. I did well on it, and she said, “Why don’t you apply to some good law schools?” I said, “I’m not going to get in.” She said, “Well, you might.”

Q: And you did get into a little school named Harvard.

A: I did. I was very lucky to go there.

Q: How different was that experience from Berkeley?

A: Where do I begin? Neither of my parents went to college. For me, to be in college was something I was not particularly familiar with, as I didn’t know many people who had gone to college.

When I went to Harvard, I was out of my element. There were a lot of people there who had had a different upbringing than I had, who had gone to private schools and the like. I was far from that. It was being exposed to a world that I had not been exposed to previously.

Q: Did you like it, or was it a little off-putting?

A: I have mixed emotions about the experience. I never felt that the law school education was accomplished in an efficient way. I felt that the Socratic method was not always the best way to impart information. So I wasn’t crazy about the educational experience, but the classmates that I had were very remarkable. Many of the professors were brilliant, and it was a real luxury to be exposed to all that.

Q: Tell me more about your upbringing.

A: I was a Valley boy. The San Fernando Valley had not fully developed then. I was a creature of the LA city schools, which at the time were very, very good. That was true through junior college. I went to LA Community College after high school. It was about a mile from my high school. We called it “high school with ashtrays,” but it was a very good education.

My parents, though they weren’t well-educated, had a lot of common sense and a lot of wisdom. My mother was a 1950s and 1960s housewife. My dad came back from World War II and was employed in the quality control field in the electronics and aerospace industry.

Q: Other influences in your life?

A: There were lawyers at Davis Wright who I worked closely with who meant an awful lot to me. One of the midlevel partners when I joined the firm was a guy named Ralph Hawkins. I learned as much from Ralph about being a lawyer as anyone.

Then, John Davis, who is now 99 years old: the Davis of Davis Wright Tremaine, the current name of the law firm. He was, for me and a lot of other people, a wonderful example of what a lawyer should be; just a remarkable man.

Q: Philosophically, what did you take from him?

A: John was always devoted to his clients, and he was devoted to his community. He served on numerous boards for decades, in addition to being a great lawyer and raising a large and successful family. He had so many interests, and continues to have them to this day.

People who know John are basically in wonder of the guy.

Q: What do you do outside the office?

A: I love to travel. When I joined Davis Wright, one of the conditions that I asked for, and they agreed to, was that after I took the bar exam I could take three months off to travel.

Q: Where did you go?

A: I hitchhiked to Chicago. I took a plane to Europe from Chicago, and then I hitchhiked around Europe for three months—all over Western Europe. Then, after a couple more years at Davis Wright, I quit to travel some more. I went around the world by myself, from west to east. I came back to town; and, about seven or eight months later, I was back working at Davis Wright.

Q: What appeals to you about traveling?

A: As Americans, our view of the world is very much confined to America. We think we do everything better, that we’re the first, that only we know how to do things. When you travel, you realize there are lots of other ways to do things. There are lots of other things to see. People in many places live wonderful lives in different ways than we do, and may in fact have a healthier approach to living.

Q: Do you have a favorite destination?

A: Some places are favorites because they’re beautiful. Indonesia, Thailand and New Zealand are gorgeous places. I’ve been to Alaska many times for fun. Other places are favorites because they’re interesting: India, Nepal.

A little over a year ago, my wife and I went to Ukraine and Moldova, and Poland and the Czech Republic. I think I’ve been in about 40 countries now.

Q: Really? How many states have you visited?

A: Forty-nine.

Q: Which one are you missing?

A: South Carolina.

Q: You have to go there.

A: At some point, I will go to South Carolina.

Q: There has been some criticism that the trend toward ADR is reducing the number of jury trials. Do you agree?

A: There is truth to the notion that there are fewer trials. I don’t know that that’s a bad thing.

Here’s why I say that: If we had people solving their own problems, we wouldn’t necessarily regard that as a bad thing. When people ask for the assistance of a third party—like a mediator, or a friend, or a trusted colleague—to help solve their problems, I don’t think that’s a bad thing. I think that’s a good thing.

I think one thing ADR—mediation in particular—has done is provide an opportunity for people to help solve their own problems, rather than leaving it up to somebody else down at the courthouse, for example. Is that a bad thing? I don’t necessarily think so.

Q: What about the increase in mandatory arbitration in contracts—do you think that’s gone too far?

A: The courts seem to think it’s gone too far because they are striking now, in a lot of contracts—primarily contracts of adhesion that people really don’t have a choice about signing—clauses that require arbitration. The courts have seen overuse of those clauses, and they’re not always letting them survive upon scrutiny.

But between businesspeople, where they’re free agents, and they can negotiate the deal if they want to negotiate, arbitration can make a lot of sense, so the courts let them survive.

Q: What has changed over the years in mediation?

A: As a general proposition, cases have become harder to settle. Most mediators who have been around a while would say the same thing.

Lawyers, and many times the parties, are now very sophisticated consumers of mediation. In the old days, it was magic, a big black box. It was mysterious; people didn’t understand it. Now the lawyers, and many times the parties, understand everything.

Secondly, in the old days, you went to mediation voluntarily. Now the courts require you to go to mediation, so you don’t always have willing participants.

A third reason cases are harder to settle, and this isn’t necessarily a bad thing: People are mediating earlier than they used to. In the days of old, people would sometimes mediate their cases on the eve of trial. Now, a third of my work or more involves people mediating disputes when there’s no lawsuit pending. There’s a legal dispute, and they want to resolve it without going to court.

A fourth reason is, I think, unfortunate. When I first started doing this, people would mediate their cases when they had talked about settlement. They had gone back and forth with offers, and they couldn’t get that last piece done, where they reached an agreement on a number. Now, I would guess half the time folks come to me to mediate, they’ve never talked about concrete settlement proposals. That makes settling a case of mediation more difficult. Lawyers, I think, are not taking responsibility for trying to settle their own cases. They now think that the place you settle cases is mediation. I don’t know how that trend ends up, but it’s disturbing. It’s very disturbing.

Q: But it’s good for you, right?

A: In a sense, it’s good for me. But, if mediation isn’t successful, that’s not good for anyone.

Q: Any changes in arbitration?

A: Can I talk about one trend that is a little disturbing? Lawyers, I think, are rightly critical of this: There is a recent concern that arbitration is looking more and more like what litigation looks like. It’s taking more time, there’s more discovery, and it costs more money than it used to.

Arbitrators really struggle with that concept because, on the one hand, we’re sensitive to the fact that arbitration is supposed to be cheaper, more efficient and less expensive than going to court. But on the other hand, a lot of lawyers are used to going to court, and they don’t want to do less than they would do if they went to court.

If the lawyers want to agree on some extensive process with lots of discovery, it’s going to be very costly. It’s hard for the arbitrator to step in and say, “No, I don’t want to do that. This is supposed to be faster and cheaper and more efficient than going to court.” There’s tension there between what arbitration is supposed to be and sometimes what it has become.

Q: How do you see that playing out?

A: One way that it’s playing out now is that a lot of parties, especially large businesses, are concerned about the increase in cost and time involved in arbitration. They’re less willing to arbitrate their disputes than they were a few years ago. Plus, not all parties are happy about giving up their right of appeal, because it’s so difficult to attack the award of an arbitrator. There is effectively no appeal in an arbitration. There are some very limited grounds you can appeal. It would have to be something extraordinary.

The courts are very willing to respect what an arbitrator does. The theory is the parties have agreed to a process, the parties are bound to that process, and that process generally stops with the decision of the arbitrator.

Q: It’s a heady—but weighty—responsibility.

A: It is both.

Q: In general, the trend is still toward more arbitration?

A: That has been the trend. I’m not at all confident that is going to continue to be the trend. There is reluctance in the business community to arbitrate with the enthusiasm they used to have.

Q: But you plan to stick with ADR.

A: I like learning something new every day, working with new people, learning about new issues, exploring areas of law I haven’t explored before. It’s fascinating. As an added bonus, I feel socially useful. I feel like I’m genuinely helping people. I didn’t always feel that way at the end of the day when I was practicing law.