Sheila Purcell, USA

IE: Welcome back to another program of We can find a Way, a podcast about conflict resolution. My name is Idil Elveris. Today’s program features Sheila Purcell, whom I was fortunate to have as a teacher for a week back in 2012, in San Francisco. Sheila is the director of the Centre for Negotiation and Dispute Resolution at the University of California Hastings. An alumni of this law school happens to be the Vice President elect of the US, Kamala Harris. The Centre for Negotiation and Dispute Resolution has been consistently recognized by many sources as one of the top ADR programs in the country and has been the winner of many awards. So was Sheila. She helped launch and is one of the lead faculty for the groundbreaking International Court, ADR Institute course for international judges and lawyers that I also attended. She also told me what a mediation clinic does. Before all that, she designed and directed a public private dispute resolution partnership of the bar and the community and the courts with civil, small claims, family, probate and all other, you name it, areas. She is definitely one of, if not the pioneer of court ADR programs in California and in the US. She and I talked about how she started the successful court ADR program in California through the help of California Bar Association. How she spreads the know how through an international program, what dispute system design involves, what mediation clinics can do, and what mediators can do to address the divided country that the US has become. This interview took place on the 8th of October, so approximately one month before the US elections.

Thank you for agreeing to talk to me today Sheila. You have run one of the most successful ADR programs in California, in the most populous state of the US for years. We know that this is a bottom up program. You have started it. Can you tell us how you got involved in this project first and then what the disadvantages or advantages of that kind of project may be when compared with a European approach, which is much more top down?

SP: Well, thank you. It’s really fun to reconnect and see you again. In 1996 or so, I was hired to direct a totally new ADR program in a county just south of San Francisco called San Mateo County. For about five years before that project, I worked throughout California for the state Bar of California. I was hired to try and think of ways to serve people who were in middle income brackets. In other words, not poor enough for legal aid and not wealthy enough for a private attorney, which is a lot of people because our system is quite expensive. So, I was hired as a middle income program developer and nobody knew what that was, including the people who hired me or me. It involved a lot of different things like legal insurance and ways to make law more accessible and economical for people in the middle income groups.

But my own background was in community mediation, and I kind of changed that job at the State Bar of California into a dispute resolution job where I would go throughout California and help courts, bar associations and community mediation centers create programs in their communities that would serve everybody, but especially low and middle income people. And through that, I got to see a lot of different counties of California and what they were doing and really shared information from one place to the next. This was a little bit early in the life of the web and the Internet, so I personally was bringing forms from one county to another and saying: “Oh, you might try this. This is what they did in San Francisco or LA”.

IE: Who are you working for? At that time, they.

SP: The Bar of California. They had a division that was aimed at helping with access to justice issues. And this was a new position. And I did that for five years. And I learned so much from people all over the state, trying to start programs both in their courts or their bar associations or community mediation centers. And what I kept seeing was they weren’t talking to each other, even in their in a single county, there might be three projects totally unaware of each other. So, I’ve always kind of seen my role as more of a convenor. I would introduce those people to each other and tell them how good their work was and maybe they would want to think about working together. So through that, I met people in San Mateo County and they said, we’re going to find some money for a new position to start a new program. We hope you’ll apply. And so I did. And I became the director of what we called the Multi Option ADR Project. It was a partnership. It was funded by the local bar association.

They kind of gifted me to the court and said, “here’s a free staff person who’s going to help you start a mediation program”. And the court was like: “Oh, really? Okay, I’m not so sure we want to do that, but she’s free. Let’s give it a try”. Quite innovative of the local bar to do that. But at that point, trials were backed up many years. In our system, criminal cases have to go first. And what it means is you can end up really delaying civil cases because there’s no requirement that they happen quickly. So I came at a good time for trying to help deal with the backlog was initially a civil program. I used that same methodology that I’d used at the state bar of trying to bring together a partnership of the court, the Bar and Community Mediation Centre. And so I developed a board of I called it an oversight committee. It’s like a board of directors. Leaders from each of those really worked hard to get their input in how to design this so that it met the needs of this particular place, this county. So, I did a needs assessment and asked people in the community: “What do you think is missing from your court? What do you need that you’re not getting?” There was a lot of need in the family area, even more than civil. But I was hired to run a civil program, so I started that. I documented success and things that needed to be fixed. In other words, from the very beginning, we had evaluations of the parties, the mediators, the lawyers. What did everyone think? So we could adjust and redesign and redesign until it really was a solid program in the civil area. And once I had that and documentation of that, I was able to get additional money and additional programs started in family law to juvenile programs, probate, complex litigation. So eventually I had eight mediation programs under my umbrella. And the bottom up was that each of those eight programs I involved the court, the bar and the community and the design, and each of the eight was had a distinct design. So, three of my eight programs were free and we used community volunteers and that was for small claims. And the juvenile programs, the civil programs parties could pay. These were largely business disputes. There was money that could be spent on paying a mediator for their professional service.

I think the advantages of bottom up are that you can really customize and involve participants in the design of a program and you can really make it very specific to the needs of that community or that set of cases. The disadvantage is I think you touched on one and it’s less uniform, there’s less funding, it’s a lot more of a patchwork when you’re doing it at the local level and bottom up. Some states, even in the US, were a little more top down. There were statewide offices of dispute resolution in some states, not California, but Ohio, Oregon, Florida. So, there was a period where there was some amount of coordination in some states, but California, there were very different things throughout the state, and that was a disadvantage for lawyers and parties. But over time, many of the programs began to look more and more like each other. Many of us banded together to try and get state legislation, which eventually we did. I’d say now it’s more uniform, county to county, pretty bottom up, compared to many places like in Europe where there’s mandatory mediation.

IE: I guess you saw early that design or process design was the issue without really being able to call it. I guess it came up much, much later. I see that you’re teaching it, so could you please tell us what system design is, what you’re teaching in that curriculum course, why something like this was needed.

SP: So when I was first invited to teach dispute system design, I asked the person, I said: “What is that?” So I didn’t come to this as an academic. I had never studied it. I’d never seen a book on it. I didn’t know what he was talking about. He said: “Well, it’s what you do”. And I said: “Really?” That’s interesting. You know, everything I’d been doing was pretty intuitive. And it was just like what I thought was needed. It wasn’t some grand scheme said: “Well, let me read about it and I’ll get back to you and see if I’d be comfortable teaching it”. At that time, there really wasn’t that much to even read about it. Even now, there’s not that much literature on it.

What it basically involves is looking at sets of cases or streams of cases that are similar in nature and thinking about what’s the best way to solve that kind of case in this particular stream, so it can be used within an organization like HMOs, one of our medical groups, Kaiser Permanente, for all their medical malpractice cases, they were involved in a lawsuit that was ugly and they created a commission to try and fix what this mess they had created. And the fix was to think about a new system for handling all these medical malpractice cases. So that would be an example of within an organization, them stepping back and saying:” okay, let’s start from scratch. What’s a good way to handle these?” In that particular case, it was primarily through arbitration within courts such as the San Mateo Court where I worked.

There’s a new dispute system design textbook. It’s by Lisa Bingham Amsler, Jan Martinez and Stephanie Smith. They use a framework that I also have brought to my classes which looks at what are your goals, what are your resources, who are the stakeholders? How are you going to fund this? How are you going to evaluate it? It’s just trying to break down that process of stepping back and thinking about what’s needed and what can we provide. In terms of whether it’s needed for law students, I’m not entirely sure that it is. It’s a little too advanced in a way. I think it’s great for them if they can take it because it exposes them to the idea that these things, these systems are built by someone and they have implications when they’re built. Like a lot of decisions that impact the quality of justice are made at the design stage.

IE: And it’s not a legal decision. It’s not a legal determination. I think you’re asking them to think about policies.

SP: Right.

IE: And legal education doesn’t really actually teach them to do that.

SP: Right. Policies and administration, the practical things like how do you fund it? Who’s going to let you do this? You know, like all the.. if you want to create a vision and make it real, what are you going to have to do? What are the steps? And system design helps you sort of step back either within your organization or agency or court and think through they can play a part in shaping how organizations, agencies, even courts do their business, and the impact of that shaping can be really substantial. It’s people kind of think it’s all decided or done. It’s not.

IE: In one of the latest programs, I had an expert who was engaging in conflict resolution in international disputes. He was telling me the same thing like that. She was very much engaged in system design for international institutions like the World Bank, like the UN. And, you know, it has become a very established concept because every peace negotiation also requires a system design. You know, how long violence was there? How many people have died, how long has it been going on? So it’s a different question in each context. But I think the needs that are being addressed are the same.

SP: Interesting. And at the international level, you have organizations but you don’t have a single court for the whole world, for example. So there’s an opportunity because the need is there, right, right to coordinate and advance, but there isn’t a framework. So many countries are doing more mandatory programming and sometimes that’s appropriate at the beginning to introduce people to an idea. But I think it’s very hard to go back once you’ve had mandatory. People kind of like being told what to do. It’s more difficult to think for themselves and figure out what they want to do. So that’s a challenge.

IE: It’s also something that we have discussed when I was attending the program where you were teaching at the University of California, Hastings College of Law. How did it evolve in the last eight years? Because we were obviously not law students anymore. There were many judges, there were many official figures, but also like professionals who were involved in this implementation and design issues.

SP: Even before I began at Hastings the last five years or so of that, I kept getting wonderful requests for people to come visit and observe, and they wanted to learn about how to do it because we were one of the early programs they would find us. And we would try and help them. But I never felt like I had enough time to really help these foreign visitors. And so I myself graduated from UC Hastings College of Law in San Francisco. I approached Hastings and said, If I can get a grant, I would really like to develop a week long curriculum for people from around the world who I keep meeting for an hour or two instead of a week or two who want to build programs in their countries but don’t really know where to start because there aren’t books on this or, you know, it was still a relatively young field. It still is a young field.

I got a grant thanks to the JAMS Foundation and started the program along with colleagues Howard Herman and Claudia Bernard back in 2011. And you were there, I think, the second year of the program. In terms of how much has evolved, so much is based on who comes, what countries they’re from, what issues they’re facing. What surprised us is how much the issues are common across really different countries. So we’ve had people from more than 40 countries now, everything from Armenia and Bhutan to many African countries Singapore, Taiwan, Italy. It’s kind of presumptuous to think that any class could speak to all those different situations. So in terms of the course which we call “Court ADR Institute, envisioning designing and implementing ADR”, I’d say the structure is not that changed, but it has gotten harder under President Trump to be sure that people will be able to get visas and get in. We had to cancel the first summer after Trump was elected. He was saying things about African nations and Muslim nations that were really not helpful because people needed to go to their governments to get funding to come. And nobody wants to fund you to go to the US. If the president of the US is…

IE: Only to get stuck at the border.

SP: Yeah, right. Really has been a problem and we didn’t offer it last summer because of the pandemic. But we are doing a series virtually starting this month for some of our colleagues who got International Weinstein ADR Fellowships to help people from around the world learn more about ADR. And so Howard and Claudia and I are doing a short three part series for them. And then we’re trying to think through. Will we do the next institute virtually? It will have to change because as you know, from when you came, part of what we enjoy doing is going to see some programs in operation. There’s nothing like a face to face experience. On the other hand, it would probably mean a lot more people could attend if it was virtual.

IE: You’re the director of the Centre for Negotiation and Dispute at the University of California, now. You’re very busy training and teaching. Do you also get to mediate yourself?

SP: Probably could if I wanted to, but frankly, I’ve always been more of a convenor and facilitator. I have been a mediator, but I find I don’t have as much patience as the really good mediators, right? I want people to have the best and I don’t think I’m the best. I think I’m okay. I don’t miss doing it. I kind of like big impact. I find single cases they’re really important to the parties, but it’s a single case. And so I like designing programs and getting good mediators and being the bridge between parties and mediators. I don’t think there are enough people who play that role of getting cases from the people who are in dispute to the mediators. We have a lot of mediators trained now. We have a lot of disputes, but we don’t have is good connections. I view my role more in trying to build those bridges, facilitating events, trainings, convening people, bringing them together.

IE: Another question is about legal clinics, because it’s something you and I both share. I used to be a legal clinician at Istanbul Bilgi University myself for almost 15 years. So please tell us what mediation clinics do.

SP: We help settle small claims cases and our students do the mediating every time they mediate. There is a faculty person present. We’re very hands on. We’ve been doing it for many years. And so the court views this as part of their efforts. Our students wear little name tags that show that they’re with the court, but they’re volunteers. They approach the parties in the hall and invite them to mediate. So they do everything from getting the parties table to mediating to writing up the agreements. It’s great professional skills building. Whether they become mediators or not, that kind of on the spot, trying to be persuasive and engaging. In addition to the small claims cases our clinic also mediates Department of Fair Employment and Housing disputes. These are generally discrimination cases much more complicated than the small claims cases. In those instances, the professors take more of the lead and the students are more of a sort of second counsel. They get to observe and assist. The lead mediator is more the professor.

So, in addition to our clinic, most of our courses are under 20 students and involve a lot of role plays. Not just mediation class, but negotiation, facilitation, arbitration, international arbitration, culture and negotiation. The American Bar Association, just about two years ago passed a new regulation that says every law student has to have at least six units of experiential classes, which has been a help because our students were already seeking out the clinic and the professional skills classes. So there’s a lot more activity in the clinics around the country. There are a lot of opportunities for experiential learning. I’m okay with books and paper, but if I get to really apply something, it becomes very alive. I remember it better and I learn more in an experiential environment. So, for students who are more like me, there’s so many good opportunities now that didn’t exist when I was in law school.

IE: So last question: How do you think this pandemic will affect the future of dispute resolution? I mean, we have discussed it, and I’m sure you’re going to come up with an innovative solution again. But I’m not only talking about like carrying a mediation through Zoom, we’ll probably have to do and think differently.

SP: Well, I don’t know the answer to that question, but I do think more than ever, we need to help each other through the many conflicts that our globe is experiencing. Some of which were there before the pandemic, some of which are really related to the health issues posed by the pandemic, the inequality of health coverage, the economic dislocation that’s already happened to so many people. So there’s going to be a need for conflict resolvers, problem solvers, people who can just help other people talk to each other. At least in the US, it’s become much more of a divided country than I would like to live in.

I’m hoping we can remind people of the value of just basic civility. It sounds so simple and not horribly innovative, but finding places and ways to help people talk to each other and do so in a way that’s productive and not about always winning, but really understanding each other and what that looks like exactly, I don’t know. I do think online dispute resolution tools will become more primary in every setting, certainly in courts, but also in the private sector. Though I’m not very good with online tools myself, I understand the power that they can bring to mediation and the way it makes many things more accessible to people from trainings being more accessible because they’re more economical to attend, because you don’t have to get a plane ticket and take time off for the travel all the way from that to really doing work differently because it’s the medium is different. In some ways it’s different. In some ways it’s not, but in some ways it’s more intimate. I’m able to see you and talk to you today and you are very far away from me. We can’t have a coffee in the town I’m in, but we can have a moment that’s not unlike a really wonderful coffee break together and talk through these issues via the internet.

I think we need to get back into human contact with each other, but some of that can be replicated in the digital world, and I think that is exciting. A little scary because it depends a lot on how it’s designed. Who has power over the design of online dispute resolution will really dictate whether it’s a source for good or evil. In other words, it has to have all the attributes that a face to face program would have and that it needs to be fair. It needs to be transparent. People need to know that if they have a complaint, it gets taken seriously, that if there are bad mediators on a panel, whether it’s digital or live, that they will be asked to increase their skills or get off the panel if they’re not acting appropriately. So, I think in any setting there are challenges. Digital has an upside and a downside, but I think the bigger issue is finding ways to help people talk to each other.

IE: I read somewhere that law school actually doesn’t really make students problem solvers. Rather, it teaches them to win cases and take it to the appellate level et. cetera. It was saying we actually need more problem spotters, diagnosis. It’s something that they learn on the job after a few years of practice. But maybe this pandemic and all these things that you’re describing is something we need to bring on to the curriculum, because it’s forcing us to go there because we can’t handle it with like the procedures that are designed for one to one interaction with all this time in the world, life doesn’t flow like that anymore. Some of that will have to go to legal education design if I understand you correctly. Like more technology, more innovation maybe in the curriculum already?

SP: I think so. And I think that will actually favor young people because many of them are much more comfortable with these tools. The field needs young people to keep it going and reinvent it, because, you know, my generation, it was new when I started and all the excitement of something new was there. That is not there anymore. In many programs it’s more about regulation and making sure nobody gets hurt by the process. And that’s important. But it’s not as fun as the start up phase. And this is part of why I love working internationally with countries that are really just starting because they have the utopian vision. What can mediation give us? And I think young people can give us some new tools. It brings a kind of intimacy that a courtroom doesn’t. You know, you’re far away from the judge or even the mediator. Right now I’m in your living room, right? You’re in my garage because a camera on our little laptops. So there are some good things about it. And I think it will favor those who are comfortable with technology. And that tends to be young people.

IE: Thank you so much, Sheila.

SP: Thank you. I look forward to listening to other episodes of your podcast and congratulations on the great work you’re doing.

IE: Oh, thank you. So to summarize the discussions in the program. Sheila explained how she started her journey in court. ADR with a program funded by the California Bar Association to be designed for middle income people. The fact that such an Access to justice initiative came from the bar rather than the government is actually telling for the legal profession in America. But where she took all this is also telling of Sheila. She discussed how system design works in a court environment by streaming similar cases. She also told us about the international court annexed ADR program at the University of California, Hastings, and how her experience showed that dissimilar countries still have very similar problems. She also mentioned the challenges of running such a program with international students, especially with the Trump administration, as well as during a pandemic. Lastly, she talked about legal clinics in a mediation context and how, again, the American Bar Association assisted these experiential learning initiatives through its regulatory framework.

I hope you enjoyed this program. I will upload a picture of Sheila Purcell in the Instagram account of We can find a Way. I’m also going to have a Turkish translation of the program in the blog. As always, I’m grateful to Efsane Şimal Yalçın for that. I will be also tweeting some of the most important quotes by Sheila in the program. Please let me know what you think about this episode at ielveris at icloud.com. As always, I’m grateful to Alper Koç, who is the sponsor of We Can Find a Way and Can Aksoy, who helps me in marketing. Thank you and see you in the next program.