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Archive for Wednesday, June 25, 2003

Mediating civic disputes

June 25, 2003

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During the past few weeks I have been reading Craig Miner's new history of Kansas. Professor Minor, of Wichita State, is now the pre-eminent state historian, and his lifelong study of our state is reflected in his new book. What I have found particularly interesting is his first chapter in which he speculates upon the nature of Kansas and Kansans.

He points out that an enduring characteristic of both has been extremes, extremes of nature, extremes of belief and extremes of political views. Further, he argues that it is these extremes that have led to the various conflicts that have plagued Kansas through its history. Certainly, there is much to suggest he is right. But I also find this tendency toward conflict worrisome since conflict is, in my opinion, rarely a desirable result.

I have been thinking about this tendency of ours toward extreme positions and conflict in the context of Lawrence and of two developments that have taken place in the past several weeks. First, has been the conflict regarding the proposed siting of a new Wal-Mart in northwest Lawrence, a conflict which is symptomatic of the deep divisions among the population on issues of continuing development in Lawrence and its surrounding communities. The second is the conflict that has flared up between the university and its neighbors, reflected in discussions of whether the university can be made subject to city zoning and development ordinances.

In both cases, these conflicts led to threats of and in the case of the proposed Wal-Mart development actual litigation. In both cases the middle ground seems to have been lost and discussion quickly turned to threats and legal actions.

There are times when conflict is unavoidable. There are also times when discussion has failed and the need to go to law is clear. But resort to legal action is often not necessary. It is always expensive and time-consuming. I teach my students that litigation should be viewed as a last resort, not something to be sought out quickly. Lawyers have long known that there are far better ways to solve disputes than through litigation or threats thereof.

Abe Lincoln, one of the most successful trial lawyers of his era, put it simply: "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."

One of the greatest strengths of Lawrence is that it is a community. All of us, including those on every side of these issues, are members of this community. And our community is threatened right now. The economy is weak. Tax revenues at every level have been disappointing. The city is being called upon to do more with less. Profits for businesses are weak. University finances are suffering because of state cutbacks.

Now, above all other times, is the time for us to remember that in spite of our often very real differences we are members of a community and must work to maintain that community. Lawrence, the university, and those who feel aggrieved can afford neither the time nor the expense of litigation nor even threats to litigate. We must all do as Lincoln said and seek compromise outside of the courtroom.

A good start has already been made in regard to the city-university dispute with the appointment of a committee to look into the issues. But more needs to be done with this dispute, the Wal-Mart dispute, and other disputes that are sure to arise in the future.

Lawrence is filled with people of goodwill who all want the city to continue to prosper. One way to help this come about is to seek means of deciding disputes without recourse to the trouble and expense of litigation. Throughout the United States, businesses have begun to use arbitration and mediation as a way of avoiding courtroom confrontations. Can we here in Lawrence not do the same?

Certainly, there are individuals with the skills to help us use alternative dispute resolution. Ought not all of the parties to disputes first attempt to work them out through such means, thereby saving an already economically pressed community from greater expense? I believe it's worth a try.

Mike Hoeflich is a professor in the Kansas University School of Law.

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