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Mediation: a lawyer gets religion


'Discourage litigation. Persuade your neighbors to compromise whenever you can.
Point out to them how the nominal winner is often a real loser -- in fees, expenses and waste of time.'


[photo of John Gromala] John Gromala in his Eureka office.    

FOR NEARLY HALF HIS LIFE, John Gromala was a practicing attorney, and a successful one, engaged in the lucratively attractive fields of business law and estate planning.

Fresh out of law school at the University of San Francisco, he came north in 1959 to Fortuna to become the third member of a two-partner law firm. Purely by accident, actually, because he'd thought the town he and his wife Suzanne were looking for was south of Ukiah and not Eureka.

"I'd never been farther north than Ukiah," he recalls. "But when we got up here, we just fell in love with the place."

The two-man firm was that of Collis Mahan and Gerald Harland, and after Mahan retired, it became Harland and Gromala. Gromala was to remain with the firm until 1988, when he left to go into the Humboldt Group, the private group of businesses held by Fortuna magnate Patrick O'Dell. He left after 3 1/2 years.

"While I was with them," he recounts, "I became acutely aware of what litigation does to a business. It's not high legal fees that are really destructive. It's what happens internally when management is focused on the litigation instead of looking ahead to the internal problems....

"You have a number of dynamics at work when a company's involved in litigation. Management level people are distracted by it ... you have requests for interrogatories and depositions that disrupt the business operation."

There is also, he notes, the problem of employees worrying about "who's gonna be the fall guy" if the company loses a law suit. You have middle level managers jockeying to avoid that position. "And that has a tremendous negative impact upon morale."

What Gromala saw at the Humboldt Group was not so much the latter--which is more likely at larger corporations--but what he sees now as "the distractions" of litigation.

So, attorney Gromala became mediator Gromala, which is about as drastic a step a lawyer can take. He would help people to resolve their own disputes "instead of going into court and fighting one another."

It prompts one to interject: "You got religion!"

"So to speak, yes," Gromala agrees with a small laugh.

"We call him `a recovering attorney,'" quips Betsy Watson, who refers to Gromala also as "my partner in crime."

Watson, a sociology professor at Humboldt State University (HSU), is also director of the university's Institute for the Study of Alternative Dispute Resolutions (ISADR). She and Gromala have worked together in mediation cases, and they represent the two best-known mediation services in Humboldt County.

[photo of Betsy Watson] Betsy Watson, sociology professor at Humboldt State University, and director of the university's Institute for the Study of Alternative Dispute Resolution (ISADR)

There are times when litigation is "the only alternative," Gromala concedes, but one gathers he'd consider it a poor second to mediation.

"Of the cases that are filed in California only about 3 percent get to trial," he notes. "Somewhere along the line there's a settlement, but it's the type of settlement where arms are twisted and nobody's happy. As opposed to mediation, where people can sit down in complete confidence, because everything that goes on is privileged." One can't be subpoenaed to testify if the dispute should wind up in court.

"There's a key difference in mediation -- the word `testify," Gromala points out. "When you go to court, you `testify'; you don't communicate. In mediation, there's only communication."

That encourages candidness.

"As I tell people," says Gromala, "`No judge or jury is ever going to understand this matter as well as you do. So why do you think they can come up with a better answer?' My job as a mediator is simply to reopen the lines of communication.

"When people get involved in litigation, they stop talking to each other. They can't talk to each other; they can only talk to their attorneys. So once the litigation starts ... there's no chance of reaching a reasonable settlement because the goal of litigation is for somebody to win and somebody to lose. They're not looking for a solution ... And we can resolve this in a week or a month, as opposed to waiting three or four years to find out what some judge or arbitrator is going to decide for you."

A case in point: "I had a partnership dissolution (case) not too long ago that ended up in a reaffirmation of the partnership once they got down and found what was really bothering each other and were able to confront it and dispose of it. They realized they were going to be worse off if they separated,"

Gromala goes on to say: "When business owners end up having problems, it's not because of the finances as such, not because of accounting, not because of the law. It's because of their personalities."

HSU's Betsy Watson notes: "If attorneys did what I do, they would be disbarred. Think! An attorney is ethically bound to represent their client's interest and their client only. They are hired to be an advocate for the client. But a mediator...we must represent the perspectives of all parties involved."

Watson, a no-nonsense type who dresses HSU-casual in turtleneck, bulky sweater and slacks, cites a timber harvest conflict that she was able to resolve through mediation. "We get `em together, and the idea is what does each party need? The landowner wants to make a profit; the citizen is worried maybe about environmental impact. And what they saw was each side would have to pay $40,000 -- the average by each party -- and there would be no winner ... there'd be appeals, and no one gets anything. So they tried mediating and settled by agreement,"

Gromala and Watson both make the point that mediation is an art, not a science.

"Attorneys are not necessarily the best mediators," Gromala says, "because the training they get as a lawyer is adversarial. That's the system. But mediation is just the opposite. It's nonadversarial. In the judicial system, the game is you look for a winner and not a loser; and the technique is to get your client to say as little as possible that might enlighten the other side. You just want to prove that you're right."

A major point in "selling" a client on mediation (although Gromala probably would frown at the characterization of salesmanship) is to point out the downside of litigation.

"The alternative," he will tell clients, "is to play Russian roulette, because that's what happens when you go to court. No judge, no jury is ever going to know as much about a particular matter as the people involved."

So he asks: "Do you want some stranger to decide your fate, or do you want to sit down, the two of you, and come to a solution you can both live with?"

Gromala and ISADR's Betsy Watson are agreed that meditation has not caught on well yet in Humboldt County, at least not to the extent that it has among very big corporations in other parts of the nation.

"Large construction industry," Gromala notes, "is really far ahead of the rest of the business world in mediation." He notes, for instance, that many big companies now hold a retreat, for half a day up to three days, right after a contract is let for a major construction project. They bring together all the parties -- engineers, contractors, subcontractors, material suppliers, architect -- to discuss all the problems that they know are likely to arise, and whether they'll solve them by mediation or litigation.

"They know how much the adversarial process is costing them," says Gromala. "Therefore, they use ADR (Alternative Dispute Resolutions -- or mediation) extensively. Small businesses still tend to be more secretive, and they don't use mediation as extensively."

"There are some attorneys in this county," notes Watson, "who understand mediation and use it very extensively."

Like Gromala, Watson too uses a gambling analogy in depicting the litigation process.

An attorney familiar with mediation, she says, might suggest to a client, with, say a land-use problem, "You and I both know litigation is long and expensive, and kind of a crap-shoot at the end. Would you be willing to try this other process -- mediation?"

Watson adds, "They (the attorneys) are not losing billable hours in the long run; they may not get as many billable hours in the short run."

She goes on, "Let's be brutally honest here. I'm a Cal State professor; that's how I pay my mortgage. So I do more pro-bono work. And I take sometimes some barbs from fellow mediators who say, `Oh, you academic mediators undercut us, because you're not doing it for the money.' And there's a little bit of truth to that."

Another incentive for potential clients of attorneys to take their problems to mediation rather than litigation is suggested by John Gromala.

He told the Journal that he charges a fee of $200 an hour, which is split between the customary two parties, or could be divided amoung three or more. (In the San Francisco Bay Area that fee could go as high as $750.) "If I were an attorney," he adds, "I'd charge $275 - $300 an hour." He cites that as a going rate for major law firms in the area.

Gromala, who has been in the mediating or facilitating business for half a dozen years, notes that most of his cases are referred to him by attorneys.

"Because they recognize that their clients are much better resolving the case than going to court," he explains. "And often the attorneys have difficulty convincing their clients to go to mediation because they want to fight. They know they're right, and by God they're gonna fight! People come into mediation as true gladiators, but they end up shaking hands and coming to agreement.

"There's a dynamic that gets working when people get into it. Most of them come reluctantly, very skeptical, but they leave as believers, because they've seen it work."

For Gromala, the one-time lawyer himself, that is the payoff.

"It's ultimately satisfying to watch people who are geared for battle disarm and figure out a solution and walk away, and in most cases they end up being friendly."

He adds, "This is why it is so important in business especially, because if you go into litigation or arbitration, you've severed your relationship. You've become adversaries, and you magnify whatever problems there were. The attorneys on both sides, of necessity in representing their clients, help portray the other person as the ogre.

"In mediation, they become better business associates. They learn how to better communicate with each other. And they can continue their relationship."

Gromala, who still shows up to his office in downtown Eureka dressed in the lawyer's attire of dark business suit, cuff-linked shirt and natty tie, is now, at 70, cutting back some on the mediation practice.

"I'm probably the only one (in Humboldt County) who strictly limits his practice to mediation. That's because I'm semiretired at this point; I don't want to work 40 hours a week. So most of the other mediators do other things in addition to mediation." A number of them, he notes, are involved also in psychology, for instance.

Gromala likes to point out the comments of Warren E. Burger, former chief justice of the U.S. Supreme Court, which are carried on his service's brochure and which seem made to order for the cause of mediation:

"For many (court) claims, trials by adversarial contest must, in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive for truly civilized people."

Gromala also cherishes the memory of a comment made by one of the participants in a drawn-out mediation involving beaucoup interests -- from large corporations to public treatment works, to state departments, from agricultural business to environmental groups -- in the 1995 effort to develop new rules for the California State Water Control Board. He and Betsy Watson were mediators in that one.

Toward the end of their work, one of the federal regulators involved came up to him and said she thought they were going to accomplish something.

"But even if we didn't," she went on, "this process has done one thing that will pay dividends over time. Because we're talking to each other now. We never used to."

Music to the mediator's ears.

John Gromala beams in telling the story.

"That's part of what mediation does," he said. "It brings people together."

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