Governing as an ADR Process

By Mario M. Cuomo

Mario M. Cuomo, a partner in New York's Willkie, Farr & Gallagher, was New York's governor from 1983 to 1995. He is a member of the CPR Panels of Distinguished Neutrals.

Former New York Gov. Cuomo discussed the use of alternative dispute resolution in public controversies at the closing luncheon of the CPR Institute for Dispute Resolution Winter Meeting in New York City on Jan. 31, 1 997. The transcript below is an edited version of his talk, which lasted more than three-quarters of an hour.

If there's been anything unusual about my time at the bar, it's the extent to which I became involved early with what is now known as ADR, but what was for most of my career not a prevalent enough or popular enough activity to have its own name.

In my earliest years, litigation was my occupation. Actually, it was more like my obsession. I had learned a lot about litigation, studying transcripts and records on appeal as a secretary to a judge of our state's highest court. He was Adrian Paul Burke, of the Court of Appeals. And then I came and tried alI kinds of cases: tort - they were fun, they were easy; eminent domain - we don't do a whole lot of that anymore; contracts; the state's review of administrative actions; even matrimonials.

And I worked on appeals from the trial courts of New York to the appellate division - Court of Appeals, even to the Supreme Court of the United States.

I loved it. Except for the occasional losing. But that just whetted my appetite for the competitiveness, the thrill of victory, the court as coliseum. The muscular, intellectual combat had a primal attraction for me....

I thought of arbitration clauses and mediation provisions as embarrassing forms of amateur litigation, engaged in by crypto-advocates. I preferred trying the issues... in the Court of Claims. That's the place! Trial to conclusion - let's go at it - send in your experts.

But gradually, I grew older, experienced, maybe even a little wiser. I was able to overcome a number of different primal instincts and an obsession with litigation was one of them. I came to believe that litigation and legislation, no matter how necessary, no matter how well done, both imply a kind of grand human failure - an inability to arrive at consensus, compromise, peaceful coexistence without recourse to the rigorous, expensive and time-consuming ordeal of the courtroom.

The kind of litigation that was being conducted began to seem to me a little more than a refined substitute for the rock, the club and the spear - concessions to our inadequacy and our imperfection.

Actually, it's an ancient weakness of ours as human beings, at least many thousands of years old. After all, if we had been handling our affairs well at the time, Moses would have come down from the mountain top and said, "God is very pleased." And the only government counsels we would have needed would have been to plan festivals.

I began pushing for the alternatives. From time to time, I agreed to arbitration. But mostly, I would accept and participate in mediation... eagerly. And after a while, I began to be called on to conduct mediations myself, as an attorney. In large construction contract disputes, in quarrels over state distributions, in inter-corporate squabbles and eventually, through pro bono work, I found myself an intervener in disagreements between citizens and their government....

Two Starter Cases

It was actually the process of mediation in two such cases that eventually prodded me into public life. One was a litigation that lasted several years on behalf of 100 or so homeowners whose houses in Corona, Queens, the City of New York condemned to build a ballfield for a huge, new housing development. I was in court for six years against Mayor [John V.] Lindsay, until finally he called me in and said, "I'd like you to try to mediate it between the city agencies and your owners." Which I did. Successfully.

And the other was a controversy over the placement of a low-income housing project in a middle-class New York community called Forest Hills - a confrontation that proved so painful and potentially explosive, that it won national attention.... It became the subject of a book that now is used as a textbook.

A few years later; I began a 20-year period as a state official, beginning as New York's secretary of state. I was surprised and educated by the strong role that mediation played in my public life, almost from the very first day. Here are just some of the examples:

In the mid-'70s, I was asked to mediate with the Mohawk Indians, who had seized state land in northern New York and resisted state police efforts to take it back. A fascinating situation. This is a state land, recognized as state land. The Iroquois confederacy, the Mohawks - who regard themselves as a sovereign, although we don't accept that - seized the land, saying that it was theirs all along and there was no federal treaty changing that. They were on the land in 1974 in the middle of a very big race for governor....

The incumbent powers decided not to try to remove the Indians from the land, because it would be messy. This was interesting. It was as though somebody drove a Buick onto your lawn in Queens County and when you called the police and told them to take the Buick off the lawn, they said, no, bring a lawsuit. And that's what happened. The state had to go to court eventually to resolve the claim while the Mohawks sat on the property.

It was really messy. The Native Americans would not deal with the state, because we're less than a sovereignty, and they regard themselves as a sovereignty. A couple of people tried to mediate it. It didn't work.

And Hugh Carey, the governor, asked me to go and mediate it, which we did, successfully.

We worked it out by having the superintendent of police, ... from Brooklyn, sworn in by the FBI as a special deputy and then presented him to the Native Americans, who were now eager to make a deal after various things we had worked out, and who were allowed to recognize the deputy from the FBI as a federal official. And. therefore, they could go back and justify their having dealt with the feds. instead of the lesser-than-a-sovereign, New York State.

'Mediation Saved Us'

[There also was] Co-op City, a mediation that ended a foreclosure proceeding affecting some 60,000 occupants.

Then, as governor in 1983, 54-and-a-half hours of continuous mediation on an open phone with inmates holding 16 hostages in what was then known as "Sing Sing." It looked like another Attica. Mediation saved us.

Later, perhaps the most painful of all and also the most interesting - and I wish we had a long time to talk about this, I wish somebody would write a book about it, actually - there was a nuclear facility built, which was well under construction when I became governor and had been for many years.

It was supposed to cost $500 million. It cost eventually $5.6 billion. It's called Shoreham and it's on Long Island and my position was it never should have been built. After that nuclear facility was completed, after all litigation failed led, after all the requirements of the federal government were met and the license was issued, after they started loading the facility before they ever used it, I spoke with the Public Service Commission with a shareholders group of the owner of the utility, the Long Island Lighting Co., with the officers of the Long Island Lighting Co. and with various other parties and we mediated. And they - consensually - closed Shoreham.

There was no executive order. I had no executive power in the matter: There was no statute. Democrat and Republican legislators would go nowhere near it. It was much too controversial. I asked them to pass a bill that would have made it easier to open. They said "No." I asked them to pass a bill that would make it easier to close. They said "No. It is your problem, governor."

I had no executive power, no legislative power, no power at all, except the power of a mediator.

And we sat down and they closed the plant before it was used.

I was required then to take the nuclear material off the island, which we were lucky enough to get done without anybody noticing. And now we're trying to figure out what to do with this hulk of a plant out on Long Island.

That was called ADR. Incidentally, the ultimate conclusion by all the parties, including the Public Service Commission, was that it was cheaper to close the plant or not to open the plant, than to operate it. It would have cost a billion dollars more to get it actually on line and because the facility had gone through so many design changes, the ultimate thought was you can't be sure how long it will run anyway.

That was mediation. All these experiences have left me where most of you are today, believing that the alternatives, especially mediation, are more often the best answer by every measure. Less expensive, faster, easier, more private, overall more effective. Indeed, I think that 'has become increasingly apparent as exploding technology and rapidly escalating global economic competitiveness have made business more cost conscious.

And an avalanche of criminal cases nave loaded down judicial calendars everywhere - pushing the pressure over on to the civil side, so that all trial opportunities are just .a little bit harder to get and a little bit less reliable.

Offering Encouragement

The applicability of all this to your commercial law practices is already clear to you. You arrived yesterday interested in or committed to the intelligence and wisdom of ADR. Some of you have even changed the name of your relevant departments or offices from litigation to alternate dispute resolution or counterpart names. You know that clients increasingly want it or even insist upon it. And you know that intelligently done, it's good for your practice as a matter of economics as well.

So in this regard, all I can offer you is a concurring opinion and encouragement to refine and expand these techniques in your current practice. And I do that enthusiastically because it seems plain to me that the value, even the necessity of making ADR an integral part of the modern law practice, will increase and not diminish in the years ahead. As the world grows smaller and closer, evermore tightly wrapped by electronic cords and rocket ship travel, competitiveness will become tougher.

As a result the wastefulness of most litigation will become more evident and even less acceptable in the commercial world. In a way I think this is a pleasant thought. We can imagine ourselves growing up toward a greater civility, with a stronger and stronger emphasis on resolving our business and commercial differences, instead of making them occasions for punishing confrontations. Making peace, even as we increase our profits.

But as I've already said, none of this is new to many of you here today. If my own experience can offer you anything additional, it's probably, with respect to all of this, [that it] can relate beyond the traditional, commercial world that most of you are so familiar with to the public sector that may be a little bit more remote to you. I'm certain that the dispute resolution abilities you have, and bring to the courtroom, the boardroom and the corner office, can be immensely useful in the larger realm of public policy and debate - more now than ever.

Let me tell you why. From the beginning of our history, lawyers have been well-represented, maybe even over-represented in every aspect of government. From those who want to make the rules in the legislature, to those who want to enforce them and measure them against the constitution from the bench. The first group is repeatedly exposed to the voters and so reflects their immediate wisdom, or at least their impulses and desires.

The second group, however, the judges, need consult only their intellect, their training and the law - separate from the perpetual riot of public opinion. And what they say goes. Their voice[s] dominate[ ] over the voices of the other branches - that's called "judicial review." In recent years, just as the commercial world has become more competitive, complex and contentious, so has this world of public policy making. The problems that require collective action are more complicated and difficult and sonic of the mechanisms for resolution seem less adequate. The part of our government that is run by the judiciary has remained independent - thanks largely to the cloak of security created by lifetime appointment.

And in my opinion, despite the continuing by Mr. Justice [Antonin] Scalia and the recent show of distemper by [former] judge [Robert] Bork, I believe that [courts have] functioned well over the years. But that part of the government that depends upon... the voters does not work as well. The political part of our government isn't nearly as effective as the judicial part.

Why?

Basically, because our elected representatives have developed such a strong desire to stay in office that when faced with the instant thermometer of a public opinion poll, they are powerfully tempted to do what is popular, instead of what may be the best and fairest policy under all the circumstances. Popularity is surely not the best test of public policy If popularity had been Moses, would have asked for a referendum. He didn't. He insisted on banning adultery without asking for a show of hands at Mount Sinai.

And if Moses were in charge of things today, frankly we might have a more assertive and effective government in this country. But because of the current inordinate dependence on popularity, vitally important things have not been done, for fear they might not receive the immediate approval of 51% of the voters and the representatives dare not risk the ire of the people. The result of that, even with this wonderful economy, at least for owners and investors, [is] choosing the popular or refusing to do the temporarily unpopular.

ADR Is the Solution

How then do you deal with doing the important less-than-popular things?

In certain circumstances, you can solve some of the problems with lawsuits, because lawsuits can establish rights that a reluctant legislature won't. Get the courts to do it. We can use that stronger of the bodies - strongest, I guess of three, the judiciary. That's how racism in our schools was declared illegal - Brown against the Board of Education. And women were given the right, within limits, to control their own life-producing capacity - Roe against Wade.

So that's one way to handle the problem of the dispute and get it reconciled with good sense and fairness. But that kind of government requires that you reach the constitutional issues. My settlements in Corona and Forest Hills had nothing to do with the Constitution. Neither did the Shoreham Nuclear Facility, nor does the question of Social Security and Medicare. Both those trust funds are in trouble. We all know that. And unless you do something in advance, ... you'd lose the Medicare trust fund in about 10 years. You'll have to increase the payments by wealthy recipients or do one or more controversial things. But those are not constitutional issues which the court will handle for you. What do we do about those? How do we deal with them?

In part, I think, you'll have to do [it] through alternatives to the established processes that aren't working well. We call that ADR, for mediation and consensus-forming alternatives. There are good models available.

Do you remember 1983? Remember the Social Security fund was in trouble? President Reagan was the president. How do we get it resolved? Will you call upon your Congress to do what has to be done? They wouldn't do it. It wasn't popular.

The Greenspan Commission was created. Alan Greenspan, who no one knew at the time, was named. Some Democrats [and] some Republicans behind the scenes worked out - through mediation - a bipartisan deal. That was a classical mediation between the two sides, led by Alan Greenspan. Nobody knew this was going on and in the end, you would need an act of Congress, and they agreed to do the obvious things - raise the tax, the payroll tax. A very unpopular thing to do, but necessary....

How did they get it done? They all joined hands, stepped out on the stage at the propitious moment. Greenspan announced the report. They took a vote - they all voted for it, ducked behind the curtain, closed the lights and disappeared. But then eventually people looked at their FICA or FECA ... or whatever it is and saw this thing had gone up. And a year later [they] said "Who did this?" They said, "Greenspan."

That's the same way the controversial matter of military base closings happened. How do you think they got all those bases closed, including Plattsburg in this state - a great, great loss to this state, which I fought very hard. Well, when it was really a political question, you could never close the bases. Why? Because we all locked arms - your base, I'll protect; you protect my base. That's it.

So they thought up a process. What was it? ADR, that suspended all those constitutional privileges to vote for and against. You created a new kind of thing in which you worked out a consensus. It was all apart from the traditional process.

Incidentally, you did this a long time ago when you invented the Port Authority of New York and New Jersey.... What was the Authority? The Authority was a departure from elected government and democratic government that created a body that would create a consensus for you, whether you liked it or not. It was a hiatus in the process.

Mediation by Commission

Acknowledging your imperfection and compensating for it. That's what ADR is going to be politically. It's also the method now being recommended for resolving our current Medicare and Social Security problems. A bipartisan commission - that's a mediation - for both Social Security and Medicare at the same time. Will they do it?

I put Bob Dole on my radio show at the beginning of the campaign. He remembered that I had recommended to President Reagan in 1987 a national economic commission to do this kind of thing - [a] consensus body. President Reagan said yes. Vice President Bush said no, don't do it. The president did it anyway. It was created.

The next year President Bush became president.... The bipartisan commission [had] said, "We may need that." I said, "Mr. Vice President, if you ever get elected, you're going to need this, because the taxes have to go up and the entitlements have to go down. You have to do two things: raise the taxes and cut the entitlements. Everybody here knows it."

You can't do that politically, except through this mechanism, this ADR. Nobody will have the guts to go to the people and say those two terrible things. He said, 'I will.' And he did. "Read my lips."

And then he had to come back; and say "Raise the taxes." ... And he's gone. And Bob Woodward wrote a piece. He said, "If only he had done that alternative to the normal process... he would still be president."

And so Bob Dole is on the show. What about a bipartisan commission on Social Security and Medicare? He said. "You got it, governor. We ought to do that."

Then I called the president and Dick Morris and said, "Will you do this? [They] said, "No, we don't want to mess around with that. We don't want to even say it." Good. I did an op-ed piece in the [New York] Daily News [last September]..., the president said, "We'll do it - the bipartisan commission."

No, not because I wrote it. Because it is a terrific idea. And it is going to be done.

You know, there's an intensely practical aspect to all of these developments for all of us lawyers. Government is being reinvented wherever possible. It's learning the lessons of business, and part of that process will be to emulate the ADR experience that you are developing in the private sector.

There are hundreds of smaller questions that can be handled through other adaptations of alternate approaches. State dispute resolution offices are springing up everywhere. Department of Justice has appointed an ADR specialist. Our clients will be involved in these interfaces. Some of us will be mediators. There'll be new jobs created in government for people who do ADR and who are good at. So that's business, that's work, that's practical. So it makes good old-fashioned common sense to know more about ADR's many possible applications in the public sector.

But there's another reason, a last reason, and this is my favorite reason for concentrating on this subject as lawyers. After all, the brickbats and the jokes about lawyers over the years of our history, I'm afraid that even some of us have begun to believe the popular verdict of about our character. And we seem tempted to lower our sights accordingly.

But it's nevertheless still true that without the law and lawyers, old-fashioned toned lawyers, this miraculous idea called republican democracy, that became the world's most successful political and social experiment, would neither have been born nor survive. Certainly we lawyers have the right to provide for ourselves and our families what we feel we need to prosper. And certainly we have the duty to help our clients every honest way we can. That's our basic charge as lawyers.

But consistently with that, lawyers have always understood themselves to have a broader mission as well. We've known it since Cicero. We said that a country does not educate people in her laws and allow them to be lawyers, as if she expected no help from them in larger matters. From the very beginning, people understood that people who know and can interpret and use the law, are people of power and influence. It is the law, after all. That keeps the miracle together.

Because of our education, our skills, our experience, the place we hold in our society, we have always been the ones who provided most of the leadership. We have always been among the most successful, the most influential of citizens. And we've used that power generously, since the birth of this nation. We helped to design it. We helped to secure it. We're helping to lead it, and here with the skills and perspectives of ADR, I believe we have another chance to help. And I think we ought to make the most of it. Thank you for having me.

After his speech, Mario Cuomo took several questions, the last of which dealt with investing Social Security funds in the stock market. The following were his closing thoughts

"Social Security is more than just a pension plan. It takes care of widows, it takes care of children, it takes care of disabled people, so there are a lot of functions to it. So some form of the government, in a carefully regulated way, taking some of that money and getting a return in the private market, I like.

"How you do it, though, is a very big challenge. How should you do it? ADR put a group of experts together? Sit them down like the Greenspan Commission and figure out a plan. Now they did one commission on Social Security, but it was a kind of 'pick your favorite position.' OK, now you have favorite positions - three or four of them. Now have somebody who's very good at mediation, very good at compromise,... sit down and work out the best possible plan that you can that does privatization at minimum risk."

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The CPR Institute for Conflict Resolution is a nonprofit initiative for 500 general counsel of major corporations, leading law firms and prominent legal academics in support of private alternatives to the high costs of litigation. Organized in 1979, CPR develops new methods to resolve business and public disputes by alternative dispute resolution (ADR).