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 ACKNOWLEDGEMENTS

In Chapter 14, the Annual ADR pledge statistics are reproduced by kind permission of the
Ministry of Justice.
In Appendix 1, the CEDR Model Mediation Agreement is reproduced by kind permission
of the Centre for Effective Dispute Resolution. This document is updated regularly; readers
should consult www.cedr.com to obtain the most up-to-date version.
Every effort has been made to trace and contact copyright holders prior to publication.
If notified, the publisher will undertake to rectify any errors or omissions at the earliest
opportunity.
 CONTENTS SUMMARY

Glossary and abbreviations xxxv

Table of cases xxxviii
Table of statutes lii

PART I HISTORY AND RANGE OF ADR METHODS

1 Introduction 3
2 Overview of ADR Options 24
3 Factors Influencing the Selection of an ADR Option 39
4 Funding ADR Procedures 56
5 Online ADR Options and ODR 73
6 Professional Ethics 82

PART II THE INTERPLAY BETWEEN ADR, CPR, AND LITIGATION

7 The Approach of the Courts to ADR 101
8 The Sanctions for Refusing to Engage in ADR Processes 131
9 Recovery of ADR Costs in Litigation 158

PART III NEGOTIATION AND MEDIATION

10 Overview of Negotiation and Mediation 167
11 Styles, Strategies, and Tactics in Negotiation 169
12 Preparing for Negotiation 183
13 The Negotiation Process 201
14 Mediation: General Principles 224
15 Preparation for the Mediation 260
16 The Mediation Process 279
17 Reaching a Settlement 304
18 Court Mediation Schemes and Other Schemes 310
19 International Mediation 332

PART IV EVALUATION, CONCILIATION, AND OMBUDSMEN

20 Conciliation 347
21 Complaints, Grievances, and Ombudsmen 352
22 Early Neutral Evaluation 360
x Contents summary

PART V RECORDING SETTLEMENT

23 Recording Settlement 369

PART VI ADJUDICATIVE ADR

24 Expert or Neutral Determination 391
25 Construction Industry Adjudication 407
26 Arbitration 423
27 Arbitral Tribunals 445
28 The Commercial Arbitration Process 454
29 International Arbitration 481
30 Arbitration Awards and Orders 501
31 High Court Jurisdiction in Arbitration Claims 509
32 Enforcement of Settlements and Awards 531

APPENDICES
APPENDIX 1 CEDR Model Mediation Agreement 2018 Edition 543
APPENDIX 2 Arbitration Act 1996 547

Index 587
 TABLE OF CONTENTS

Glossary and abbreviations xxxv

Table of cases xxxviii
Table of statutes lii

PART I HISTORY AND RANGE OF ADR METHODS 1

1 INTRODUCTION 3

A BACKGROUND 3
B WHAT IS ADR? 5
C WHY IS THERE A NEED FOR ADR? 6
D THE GROWTH OF ADR OPTIONS 7
E COURT RECOGNITION OF ADR 8
F ADR AND THE REVIEW OF CIVIL LITIGATION COSTS 10
G RECENT DEVELOPMENTS 11
H THE INTERNATIONAL CONTEXT 13
I SOME ISSUES WITH REGARD TO ADR 13
J POTENTIAL ADVANTAGES OF ADR 15
Lower cost 15
Speed of settlement 15
Control of process 15
Choice of forum 15
A wider range of issues may be considered 16
Wider range of potential outcomes 16
Flexibility of process 16
Flexibility with regard to evidence 16
Confidentiality 16
Use of a problem-solving approach 16
Possible reduction of risk 17
Client satisfaction 17
K POTENTIAL DISADVANTAGES OF ADR 17
Increased expense 17
Additional delay 17
Possible reduction in outcome compared to a court judgment 17
Lack of a clear and public finding 17
Loss of potential strategic use of procedural steps 18
Loss of potential advantages of evidential rules 18
Confusion of process 18
xii Table of contents
L WEIGHING UP DISPUTE RESOLUTION OPTIONS 18
M THE PSYCHOLOGY OF DISPUTE ESCALATION 19
N ASSESSING THE SUCCESS OF ADR 20
O OVERVIEW OF REGULATORY FRAMEWORKS 20
P OVERVIEW OF TRAINING AND ACCREDITATION 22
KEY POINTS SUMMARY 23

2 OVERVIEW OF ADR OPTIONS 24

A KEY ELEMENTS OF ADR OPTIONS 25

B THE ROLE OF THE LAWYER WITH REGARD TO ADR OPTIONS 26
C NON-ADJUDICATIVE ADR OPTIONS 27
Inter-client discussion 27
Written offers 27
Negotiation 27
Mediation 30
Conciliation 32
Early neutral and/or expert evaluation 32
D ADJUDICATIVE ADR OPTIONS 33
Arbitration 34
Adjudication 35
Expert determination 36
E OTHER OPTIONS 36
Hybrids 37
Processes for dealing with grievances 37
Specialist systems 37
IT-based options 37
Dispute management systems 37
Complex dispute resolution 38
KEY POINTS SUMMARY 38

3 FACTORS INFLUENCING THE SELECTION OF AN ADR OPTION 39

A LEGAL ADVICE ON APPROPRIATE DISPUTE RESOLUTION OPTIONS 39

Overcoming possible problems in advising on ADR 39
The professional duty to give advice 40
When to give advice on ADR options 41
B ADVANCE SELECTION OF AN ADR OPTION 42
C FACTORS INFLUENCING ADR SELECTION 44
Is jurisdiction an issue? 44
Is ADR inappropriate? 44
Is a court decision creating a precedent important? 45
Is a court order necessary? 46
What is the relative cost of possible options? 46
How important is expert knowledge? 46
 Table of contents xiii

Is confidentiality important? 46
How much control does the client want? 47
What are the main objectives of the client? 47
Is a future relationship important? 48
What is the relevance of the chances of success? 48
Does the client want a ‘day in court’? 48
Would neutral assistance be valuable? 49
What stage has the case reached? 49
How important might interim orders be? 49
Might orders relating to evidence be needed? 50
What is the attitude of the court? 50
Might enforcement be an issue? 50
D POTENTIAL CONCERNS ABOUT ADR 50
ADR can undermine litigation 51
Proposing ADR suggests a lack of faith in your case 51
ADR can undermine a lawyer’s control of a case 51
ADR does not really save costs 51
ADR is a way of getting something for a weak case 52
ADR involves too much pressure to settle 52
ADR is used as a delaying tactic 52
ADR is not a robust process 52
E SECURING AGREEMENT TO ADR 52
Suggest specific benefits that ADR might offer 53
Offer information about ADR options 53
Propose a simple ADR option 53
Address any concerns that you think an opponent might have 53
Offer to pay reasonable ADR fees 53
Seek to persuade a judge to order a stay 53
F CONFIDENTIALITY IN RELATION TO ADR PROCESSES 54
G TIMING THE USE OF ADR 54
KEY POINTS SUMMARY 55

4 FUNDING ADR PROCEDURES 56

A THE FUNDING CONTEXT 56

B GENERAL CONSIDERATIONS 58
What are the main elements of expense in the case? 58
How much is at stake in the case? 58
How is the case being funded? 59
The extent to which expense has already been incurred 59
The chances of success 59
The possibility that costs may be recovered or liability for costs may shift 59
C ELEMENTS OF EXPENSE 60
Solicitor fees 60
Barrister fees 60
Evidence and information 60
xiv Table of contents
Disbursements 60
Process fees 60
D WHAT ADR PROCESSES COST 60
ADR provider’s fee 61
Negotiation 62
Mediation 63
Arbitration 63
Other forms of ADR 64
E EFFECTS OF THE FUNDING BASIS 64
Conditional fee agreement funding 64
Damages-based agreement 65
Insurance 65
Third-party funding 65
Legal Aid Agency funding 66
F SHIFTING THE LIABILITY FOR COSTS—PART 36 OFFERS 67
G CONSIDERATIONS FOR THE PARTIES 68
H OVERALL FINANCIAL ANALYSIS AND RISK ASSESSMENT 69
I BASIC EXAMPLE OF ADR FINANCIAL CONSIDERATIONS 70
KEY POINTS SUMMARY 72

5 ONLINE ADR OPTIONS AND ODR 73

A INTRODUCTION 73
B BACKGROUND 74
C THE MAIN BODIES CONCERNED WITH ODR 75
D THE ROLE OF TECHNOLOGY IN ADR 75
E THE ROLE OF TECHNOLOGY IN COURT PROCESSES 76
F ODR SOFTWARE OPTIONS 77
G DEVELOPMENT OF ADR AND ODR WITHIN THE EUROPEAN UNION 79
H LOOKING FORWARD 80
KEY POINTS SUMMARY 81

6 PROFESSIONAL ETHICS 82

A INTRODUCTION 82
B ADVISING ON ADR OPTIONS 83
C LAWYERS PROVIDING AN ADR SERVICE 84
D COMPLIANCE WITH CORE PROFESSIONAL DUTIES 85
To act at all times in the client’s best interests 85
To act within the client’s instructions 86
To maintain client confidentiality 86
To act competently 87
 Table of contents xv

To act with integrity 87

To be independent 87
Not to mislead anyone 88
Not to bring the system of justice into disrepute 88
Not to make threats 88
E SPECIFIC DUTIES IN NEGOTIATION AND MEDIATION 88
F THE DUTY OF CONFIDENTIALITY 89
Introduction 89
The extent of the duty 90
Confidentiality in mediation 90
Confidentiality in early neutral evaluation and expert determination 91
Confidentiality in adjudicative processes such as arbitration and adjudication 92
G LEGAL PROFESSIONAL PRIVILEGE 92
H WITHOUT PREJUDICE COMMUNICATIONS 93
Exceptions to the without prejudice communications rule 94
I PRACTICAL CONSIDERATIONS 95
J DISCLOSURE OF INFORMATION IN ADR PROCESSES 96
Non-adjudicatory ADR and expert determination 96
Adjudication and arbitration 97
K AUTHORITY TO SETTLE 97
L THE RELATIONSHIP BETWEEN BARRISTERS AND THEIR PROFESSIONAL CLIENTS IN ADR 97
KEY POINTS SUMMARY 98

PART II THE INTERPLAY BETWEEN ADR, CPR, AND LITIGATION 99

7 THE APPROACH OF THE COURTS TO ADR 101

A INTRODUCTION 101
B PRE-ACTION PROTOCOLS 103
Practice Direction—Pre-Action Conduct and Protocols 103
The pre-action protocols 104
The Pre-action Protocol for Possession Claims based on Mortgage or Home
Purchase Plan Arrears in Respect of Residential Property 105
The Pre-action Protocol for Construction and Engineering Disputes 105
Family proceedings 106
C THE COURT GUIDES 107
The Admiralty and Commercial Courts Guide 107
The Chancery Guide 108
The Queen’s Bench Guide 110
The Technology and Construction Court Guide 110
The Circuit Commercial (Mercantile) Court Guide 111
D THE OVERRIDING OBJECTIVE AND ADR 111
xvi Table of contents
E ACTIVE CASE MANAGEMENT AND ADR 112
A more robust approach since 1 April 2013 112
Case management orders and ADR 113
Part 36 offers to settle 114
F COSTS MANAGEMENT AND ADR 115
G DIRECTIONS QUESTIONNAIRES AND ADR 118
H GRANTING STAYS FOR ADR 119
I JUDICIAL ENCOURAGEMENT OF ADR 121
J THE APPROACH OF THE COURTS TO CONTRACTUAL ADR CLAUSES 123
K COSTS ALTERNATIVE DISPUTE RESOLUTION 126
L CAN THE COURT COMPEL THE PARTIES TO USE ADR? 127
KEY POINTS SUMMARY 130

8 THE SANCTIONS FOR REFUSING TO ENGAGE IN ADR PROCESSES 131

A INTRODUCTION 131
B THE COURT’S GENERAL POWERS TO MAKE COSTS ORDERS 132
C ADVERSE COSTS ORDERS AGAINST A PARTY WHO FAILS TO COMPLY
WITH THE PRE-ACTION PROTOCOLS 133
D ADVERSE COSTS ORDERS AGAINST A PARTY WHO UNREASONABLY
REFUSES TO CONSIDER ADR 134
The nature of the dispute 135
The merits of the case 135
The extent to which other settlement methods have been attempted 137
Whether the costs of ADR would be disproportionately high 144
Whether any delay in setting up and attending ADR would be prejudicial 144
Whether ADR had a reasonable prospect of success 145
E OTHER FACTORS 147
Whether an ADR order was made by the court 148
Obtaining further information or evidence before using ADR 148
Both parties at fault 150
F REJECTING ADR AFTER JUDGMENT AND BEFORE THE HEARING OF AN APPEAL 151
G DELAY IN CONSENTING TO ADR 152
H BACKING OUT OF AN AGREED ADR PROCESS 152
I UNREASONABLE CONDUCT IN THE MEDIATION 153
J IMPOSING A COSTS CAP ON SOLICITOR–CLIENT COSTS FOR FAILING TO PURSUE ADR 153
K INDEMNITY COSTS ORDERS FOR FAILING TO CONSIDER ADR 153
L WHAT PRACTICAL STEPS SHOULD BE TAKEN BY A PARTY TO AVOID SANCTIONS? 155
M HOW DOES THE COURT TREAT PRIVILEGED MATERIAL WHEN SEEKING TO
IMPOSE SANCTIONS? 156
KEY POINTS SUMMARY 157
 Table of contents xvii

9 RECOVERY OF ADR COSTS IN LITIGATION 158

A INTRODUCTION 158
B COSTS OF INTERIM APPLICATIONS RELATING TO ADR 158
C RECOVERY OF THE COSTS OF UNSUCCESSFUL ADR PROCESSES 159
Costs of failed ADR as part of the costs of litigation 159
The agreement between the parties determines liability in
respect of ADR costs 160
The parties make no agreement about the costs of the ADR process 161
Agreement between the parties for the costs of the ADR
process to be costs in the case 162
Settlement or determination on all issues apart from costs 163
D RECOVERING THE COSTS OF AN ADR PROCESS AS DAMAGES 163
KEY POINTS SUMMARY 164

PART III NEGOTIATION AND MEDIATION 165

10 OVERVIEW OF NEGOTIATION AND MEDIATION 167

11 STYLES, STRATEGIES, AND TACTICS IN NEGOTIATION 169

A THE IMPORTANCE OF STYLE, STRATEGY, AND TACTICS 169

B STYLES 170
Co-operative 170
Competitive/confrontational 170
Choice of style 170
C STRATEGIES 171
Co-operative 171
Competitive or positional 171
Collaborative—principled or problem solving 173
Pragmatic 174
Choice of strategy 175
Interaction of strategies 176
D TACTICS 177
Tactics relating to information 177
Tactics relating to offers and demands 178
Tactics relating to structure 179
Tactics relating to presentation 180
Tactics relating to law 181
KEY POINTS SUMMARY 182

12 PREPARING FOR NEGOTIATION 183

A THE IMPORTANCE OF PREPARATION 183

xviii Table of contents
B IDENTIFYING THE OBJECTIVES 183
C THE IMPORTANCE OF THE PROCEDURAL STAGE THE CASE HAS REACHED 184
The case is at a very early stage 184
The case is at a pre-action protocol stage 185
After the issue of proceedings 185
The case is being prepared for trial 186
D IDENTIFYING THE ISSUES 186
E THE RELEVANCE OF THE LEGAL CONTEXT 186
F PREPARING TO DEAL WITH FACTS AND EVIDENCE 187
The client’s view of the facts and evidence 187
The opponent’s view of the facts and evidence 188
Dealing with gaps and ambiguities 188
Preparing to deal with facts and information in negotiation 189
G PREPARING TO DEAL WITH FIGURES 189
H IDENTIFYING PERSUASIVE ARGUMENTS 190
Arguments based on the application of the law 191
Arguments based on facts 191
Merit-based or moral argument 191
Practical or personal arguments 191
Mixed arguments 192
I PLANNING POTENTIAL DEMANDS, OFFERS, AND CONCESSIONS 192
Plan what you will seek from the other side 192
Plan how and when you will ask 193
Plan what you might offer 193
Plan how and when you might make offers 194
J LINKING CONCESSIONS 195
K IDENTIFYING THE BATNA 195
L IDENTIFYING THE WATNA 197
M CLARIFYING YOUR INSTRUCTIONS AND AUTHORITY 197
KEY POINTS SUMMARY 198

13 THE NEGOTIATION PROCESS 201

A WHEN, HOW, AND WHERE 201

B WHO 203
C COMMUNICATING EFFECTIVELY 203
Reciprocal or ‘mirroring’ behaviour 204
Effective presentation 204
Responding effectively 205
Questioning effectively 205
Listening effectively 205
D STRUCTURE AND AGENDA SETTING 206
E OPENING 207
 Table of contents xix

Open by agreeing an agenda 207

Open with a statement or a proposal 207
Start by asking some key questions 208
Invite your opponent to open 208
Start with items that can be agreed easily 209
Start with items where your case is strong 209
Make limits on authority clear 209
Refer to privilege for discussion 210
Dealing with problems in opening 210
F SEEKING INFORMATION 210
G MAKING YOUR CASE ON THE ISSUES 212
Presenting the merits of your case 212
Addressing weaknesses in your case 212
Bringing out weaknesses in your opponent’s case 213
Proposing an outcome 213
Additions to oral argument 213
H PLANNING AND TIMING CONCESSIONS, OFFERS, AND DEMANDS 214
Implementing concession plan 214
Gaining concessions 215
Making demands 215
Making concessions 216
Linking concessions 216
Making offers 217
Reaching a deal 217
Bargaining tactics 218
I MAKING PROGRESS 219
J DEALING WITH DIFFICULTIES 219
Gaps in information 219
Getting bogged down, or reaching deadlock 220
Dealing with a poorly prepared opponent 220
Dealing with a very competitive opponent 221
Frustration and emotion 221
Concern about possible inexperience 221
K REACHING A CLOSE-SETTLEMENT OR BREAKDOWN 222
Making an oral contract 222
Recording the outcome 222
No agreement is reached 223
KEY POINTS SUMMARY 223

14 MEDIATION: GENERAL PRINCIPLES 224

A WHAT IS MEDIATION? 224

B WHY IS MEDIATION AN EFFECTIVE ADR PROCESS? 225
C JUDICIAL ENDORSEMENT OF MEDIATION 227
D DISPUTES SUITABLE FOR MEDIATION 229
xx Table of contents
E THE ADVANTAGES OF MEDIATION 229
F DOES MEDIATION WORK? 230
G WHY DO THE PARTIES USE MEDIATION? 232
H WHAT CAN BE DONE TO MAKE A RELUCTANT PARTY ENGAGE IN MEDIATION? 232
Mediation Information Assessment Meetings 234
I THE TIMING OF MEDIATION 234
Before litigation begins 235
After litigation begins 237
J THE COSTS OF MEDIATION 237
The party’s own costs of preparing for the mediation 237
The mediator’s fee 237
Expenses of the mediation 238
K THE FUNDING OF MEDIATION COSTS, FEES, AND EXPENSES 239
Public funding 239
Funding under a CFA 239
L STYLES OF MEDIATION 239
Facilitative mediation 240
Evaluative mediation 241
Transformative mediation 242
M THE ROLE OF THE MEDIATOR 242
Organizing the mediation process 243
Acting as a facilitator 243
Acting as intermediary 244
Post-mediation role 244
N ACCREDITATION AND REGULATION OF MEDIATION 244
Introduction 244
Training requirements 245
O THE CIVIL MEDIATION COUNCIL 246
The CMC Mediation Provider Registration Scheme 246
The CMC Individual Registration Scheme 247
Is further regulation required? 247
P ETHICAL CONSIDERATIONS AFFECTING MEDIATORS 248
Competence 248
Independence and neutrality 248
Impartiality 249
The mediation procedure 249
Fairness 249
Confidentiality 249
Termination of the mediation 250
Repeat instructions 250
Practice administration 250
Q THE WITHOUT PREJUDICE RULE IN MEDIATION 250
Communications that are not protected by the without prejudice
rule in mediation 252
Can the mediator rely on the without prejudice rule? 254
 Table of contents xxi
R LEGAL ADVICE PRIVILEGE IN MEDIATION 254
S CONFIDENTIALITY IN MEDIATION 255
Example of a confidentiality clause 255
Information given to the mediator 255
Can the mediator enforce the confidentiality clause? 255
When will the court override the confidentiality provisions
in the interests of justice? 256
Other exceptions to confidentiality 256
T THE MEDIATOR AS WITNESS 257
Should the law be reformed? 258
U CAN A MEDIATOR BE SUED? 258
Legal proceedings 258
Disciplinary proceedings 259
KEY POINTS SUMMARY 259

15 PREPARATION FOR THE MEDIATION 260

A INTRODUCTION 260
B SELECTING A MEDIATOR 260
The qualities required in an effective mediator 261
Factors influencing the selection of a mediator 261
C THE DURATION OF MEDIATION 263
D SELECTING A VENUE 263
E THE AGREEMENT TO MEDIATE 264
F PRE-MEDIATION MEETING/CONTACT 266
G THE ATTENDEES 267
Representatives of the parties 267
Person with authority to settle 267
Lawyers 268
Insurers 268
Interest groups 268
Experts 268
Witnesses of fact 269
H THE POSITION STATEMENTS 269
The aims in drafting the position statement 270
The content of the position statement 270
Joint position statement 271
I THE KEY SUPPORTING DOCUMENTS 271
Agreed bundle 272
Confidential bundles 273
J DISCLOSURE OF POSITION STATEMENTS AND DOCUMENTS 273
K OTHER DOCUMENTS THAT THE PARTIES MAY WISH TO BRING TO THE MEDIATION 273
xxii Table of contents
L OTHER INFORMATION THAT THE MEDIATOR MAY SEEK FROM THE PARTIES
BEFORE THE MEDIATION 274
M RISK ASSESSMENT 274
N OPTIONS FOR SETTLEMENT 275
O SPECIMEN SETTLEMENT CLAUSES 277
P CONCLUSION 277
KEY POINTS SUMMARY 278

16 THE MEDIATION PROCESS 279

A WHEN DOES THE MEDIATION START? 279

B THE STAGES IN MEDIATION 280
C THE OPENING STAGE 282
Introductions 282
The opening joint meeting (plenary session) 282
Opening statements by the parties 284
Witnesses and experts 286
Closing the opening joint meeting 286
Extension of the plenary session 287
The separate private meetings (or closed meetings) 287
D THE EXPLORATION/INFORMATION STAGE 288
Carrying out a ‘reality test’ 288
Probing the underlying issues 288
Devising options for settlement 289
E THE NEGOTIATING/BARGAINING STAGE 289
Acting as a shuttle-diplomat 290
Devising strategies to help the parties work through deadlock 290
F JOINT OPEN MEETINGS IN THE EXPLORATION OR BARGAINING STAGE 292
Joint meetings of representatives of the parties 292
Joint meetings between the lay clients 292
Joint meetings of the experts 292
G THE SETTLEMENT/CLOSING STAGE 292
If settlement is reached 292
If no settlement is reached 294
H THE CLOSING JOINT MEETING 294
I TERMINATION AND ADJOURNMENT OF THE MEDIATION 295
J THE MEDIATOR’S ROLE FOLLOWING THE CONCLUSION OF THE MEDIATION 295
K THE MAIN VARIATIONS IN THE PROCESS 295
Evaluative mediation 296
Evaluation of the merits of the case requested by both parties 296
Evaluation of one or more issues requested by one party only 296
Med-Arb 297
Arb-Med 297
 Table of contents xxiii

Telephone mediations 298

Mediations conducted online 298
L THE ROLE OF THE ADVOCATE IN MEDIATION 298
Preparation and case analysis 299
Mediation advocacy 299
Advisory skills in mediation 300
Delivery of the opening statement at the opening joint meeting 301
The advocate’s role during private closed meetings 301
Settlement 302
KEY POINTS SUMMARY 303

17 REACHING A SETTLEMENT 304

A CONTRACTUAL PRINCIPLES 305

B ORAL AGREEMENT AND EMAIL 305
C THE RESPONSIBILITIES OF THE LAWYER 306
D CHECKING COVERAGE AND DETAIL 306
E RECORDING THE OUTCOME 308
F BUILDING IN ENFORCEABILITY 308
G IF NO AGREEMENT IS REACHED 309
KEY POINTS SUMMARY 309

18 COURT MEDIATION SCHEMES AND OTHER SCHEMES 310

A INTRODUCTION 310
B HISTORIC SCHEMES 311
The Central London County Court Voluntary Mediation Pilot Scheme 311
The Central London County Court Compulsory Mediation Pilot Scheme 311
The National Mediation Helpline 312
C CURRENT COURT MEDIATION SCHEMES 312
The Mayor’s and City of London County Court Mediation Scheme 313
The HMCTS Small Claims Mediation Scheme 313
The Court of Appeal Mediation Scheme 314
The West Midlands Family Mediation Scheme 315
County court local schemes 315
D MEDIATION INFORMATION PILOT COURT SCHEMES 316
The Birmingham, Manchester, and Central London County Courts Mediation
Information Pilot Schemes 316
The Court of Appeal Mediation Pilot Scheme 316
The Central London County Court Pilot Scheme 316
E THE CIVIL MEDIATION ONLINE DIRECTORY 317
F FIXED PRICE MEDIATION SCHEMES 317
G JUDICIAL MEDIATION SCHEMES 318
xxiv Table of contents
The Court Settlement Process in the Technology and Construction Court 318
Judicial mediation in family cases 319
Judicial mediation in Employment Tribunals 320
H MEDIATION IN SPECIFIC CASES 320
Mediation in cases in the Commercial Court 320
Complex construction, engineering, and technology disputes 321
Family cases 321
Workplace mediation 323
Mediation in employment disputes 324
Mediation in personal injury cases 325
I MEDIATING MULTI-PARTY DISPUTES 325
J OTHER SPECIALIST MEDIATION SCHEMES 326
K OTHER MEDIATION PROCESSES 327
Project mediation 327
The mini-trial or executive tribunal 328
Consensus-building mediation in environmental disputes or
disputes that involve public policy issues 329
Deal mediation 329
L RESTORATIVE JUSTICE 329
M COMMUNITY MEDIATION 330
N PRO BONO MEDIATION AND LAWWORKS 331
KEY POINTS SUMMARY 331

19 INTERNATIONAL MEDIATION 332

A INTRODUCTION 332
B THE ADVANTAGES OF MEDIATION IN INTERNATIONAL DISPUTES 332
C PREPARATION FOR MEDIATION IN INTERNATIONAL DISPUTES 333
D THE PROCESS IN INTERNATIONAL MEDIATION 334
E THE GROWTH OF MEDIATION IN EUROPE 335
F A MOVE TOWARDS HARMONIZING PRACTICES IN INTERNATIONAL MEDIATION 335
G THE EU DIRECTIVE ON MEDIATION IN CIVIL AND COMMERCIAL
CASES (DIRECTIVE 2008/52/EC) 336
The objective of the Directive 336
The application of the Directive 336
Implementation of the Directive by the United Kingdom 337
The main provisions of the Directive and the implementation
of these provisions by the United Kingdom 337
Application of the Directive to domestic mediations 341
Implementation of the EU Mediation Directive in other member states 342
H THE EUROPEAN CODE OF CONDUCT FOR MEDIATORS 342
I ENFORCEABILITY OF INTERNATIONAL MEDIATION SETTLEMENT AGREEMENTS 342
KEY POINTS SUMMARY 343
 Another Random Document on
Scribd Without Any Related Topics
employed in one of the smartest uptown stores. It had an
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of sending to school. But the mother fell sick. Gradually the little pile
of savings was swallowed up. Mrs. Lund needed expensive medicine.
And six dollars a week is very little for a family of five, especially
when one is sick and another must always have fresh clean linen
collars and cuffs. At the store they insisted that the girls should
always be "neat and presentable." The fourteen year old sister went
to work looking after a neighbor's baby, but she only got two dollars
a week and two meals.
When the savings had been exhausted Nora took her troubles to
the superintendent. She did not want to seem to be asking for
charity, she begged to be given some harder work so she could earn
more. It was refused. That week Wednesday there was nothing in
the house to eat. The druggist and tradesmen refused further credit,
and the rent was due. Nora went again to the superintendent and
asked to have her wages paid in advance or at least the three dollars
she had already earned. The superintendent was angry at her
importunity.
When Nora left the store that evening she carried with her a
box containing a dozen silver spoons. Unfortunately she did not
know any of the regular and reliable "receivers of stolen goods," so
she had to take a chance on the first pawnshop she came to. The
man suspected her, asked her to wait a moment and telephoned for
the police. He kept her at the counter with his dickering until the
officer came. Nora did not know the first thing about lying and broke
down at the first question.
If she had been a man I would have encountered her sooner,
but I very seldom went into the women's prison. It is part of the
burden of their sex, I suppose, but the women one generally finds in
prison are the most doleful spectacle on earth. Having once lost their
self respect they sink to an infinitely lower level than men do. With
the first enthusiasm of my early days I used often to dare the horror
of that place. But I soon recognized my defeat before its
hopelessness and gave it a wide berth. So I did not hear of Nora
when she first came to the Tombs. It was two weeks before her case
was called. It came up before Ryan. I was not in court when she was
arraigned, but the next morning I found a note in my box from the
judge.
"Please look into the case of Nora Lund, grand larceny in the
second degree. She plead guilty yesterday but she does not look like
a thief. I remanded the case till Wednesday to give you plenty of
time."
Before Wednesday I had the facts I have already related. It was
pitiful to see Mrs. Lund. The shame and disgrace to the family name
hurt her much more than the starvation which threatened the
household. She was really sick, but she came down every morning
to cry with her daughter. They were in a bad way at home, as Nora's
wage had stopped since her arrest. I fixed them up with some food,
squared the landlord, and did what I could to cheer them. Ryan had
already shown his sympathy and I allowed myself to do, what I
made it a rule never to do. I practically promised the mother that
Nora would be released.
I prepared my report with extra care. It was an unusually good
case. All the goods had been restored. The firm had lost no money. I
had rarely had an opportunity to report so strongly my belief that
the offender could be safely discharged. I recommended the "utmost
leniency" with a light heart.
When the case was called, I handed up my report to the judge.
He read it rapidly as if he had already made up his mind to let her
go.
"You're sure it's the first offense?" he asked perfunctorily.
I assured him it was.
"All right," he said, "I guess suspended sentence...."
 The clerk stepped up and gave the judge a card.
"Your honor," he said, "a gentleman would like to speak to you
about this case, before you impose sentence."
The man was called up and introduced himself as the regular
attorney of the complainants. He was a member of one of the great
down-town law firms. He had the assurance of manner of a very
successful professional man. His clients, he said, had asked him to
lay some information before the court. In the last few years they had
lost a great many thousand dollars through such petty theft. The
amount of this loss was steadily increasing. Most of the thefts were
undiscovered because the employees protected one another. They
seemed to have lost all the old fashioned loyalty to the firm. The
directors' attention had been unpleasantly called to this very
considerable outlet and they had decided to respectfully call it to the
attention of the courts. If two or three offenders were severely
punished it would have a salutary effect on the morals of their entire
force.
My heart sank. I knew how the judge would take it. He was
always impressed by people of evident wealth. I am sure that he
thought of God as a multi-millionaire. He handed my report to the
lawyer. He read it half through and returned it. It could not, he said,
affect the attitude of the complainants. They were not interested in
the family life of Nora Lund, but in the honesty of employee No.
21,334. Their view-point was entirely impersonal. "Even if my clients
wanted to be lenient, they could not, in justice to the stockholders.
It is purely a business proposition. The losses have been very
heavy."
 "Are you asking his honor," I said, "to punish this girl for the
thefts of the others you did not catch?"
He ignored my question and went on telling the judge that
unless something was done this sort of thing would increase until
business was impossible.
"Our whole force," he said, "know of this crime and are
watching the result. If no punishment follows there is sure to be a
big increase of theft. But if she is sent to state prison it will greatly
reduce this item of loss."
"Your honor," I broke in, thoroughly angry, "This is utterly unfair.
He whines because the employees are not loyal. How much loyalty
do they expect to buy at six dollars a week? They figure out just
how little they can pay their people and keep them from the
necessity of stealing. This time they figured too low, and are trying
to put all the blame on the girl. If they paid honest wages they
might have some right to come into court. But when they let their
clerks starve they ought not to put silver in their charge. Its...."
"Hold on, officer," Ryan interrupted, "There's a great deal in
their point of view. Our whole penal system is built on the deterrent
idea. The state does not inflict penalties to repay the wrong done it
by an act of crime, but to deter others from committing like crimes.
As long as the complainants take this view of the case I cannot let
her go without some punishment."
"Punishment?" I broke in again. "I hope we will never be
punished so bitterly. The shame of her arrest and imprisonment is
already far in excess of her wrong doing. The firm did not lose a
cent and they want her sent to state prison."
 "I won't send so young a girl to state prison," the judge said,
"But I cannot let her go free. I'll send her to one of the religious
disciplinary institutions."
I asked for a few days adjournment so I could lay the matter
before the members of the firm personally.
"The delay would be useless," the attorney put in. "My clients
have no personal feelings in the matter. It is simply a carefully
reasoned business policy."
I persisted that I would like to try. The judge rapped with his
gavel.
"Remanded till tomorrow morning."
As we walked out of the court room, the attorney
condescendingly advised me not to waste much time on this case.
"Its useless," he said. But I did not want to give up without a fight.
When I tried to see the members of the firm, I found that my
opponent had stolen a march on me by telephoning to warn them of
my mission. Their office secretaries told me that they were very
busy, that they already knew my business and did not care to go into
the matter with me.
I was acquainted with the city editor of one of the large
morning papers and I had found that the judges were very
susceptible to newspaper criticism. More than once a properly placed
story would make them see a case in a new light. I found a vacant
desk in the reporters' room and wrote up Nora in the most livid style
I could manage—"soulless corporation," "underpaid slaves" and such
phrases.
"It's a good story," the city editor said, "Too bad there isn't a
Socialist paper to run it. But we can't touch it. They're the biggest
advertisers we've got. I'm sorry. It certainly is a sad case. I wish
you'd give this to the mother."
He handed me a bank-note. But I told him to go to the father of
yellow journalism. It was not money I wanted. I stamped out of his
office, angry and discouraged. But my promise to Mrs. Lund, to get
Nora out, made it impossible for me to give up. I walked up the
street racking my brains for some scheme. Suddenly an inspiration
came. They would not listen to me. Perhaps I could make money
talk.
My small deposits were in an up-town bank. It did not have a
large commercial business, but specialized on private and household
accounts. The cashier was a fraternity mate of mine. With a little
urging I got from him a list of depositors who had large accounts at
the store where Nora had worked. I picked out the names of the
women I knew to be interested in various charities and borrowed a
telephone.
It is hard to be eloquent over a telephone. The little black
rubber mouth-piece is a discouraging thing to plead with, but I stuck
to it all the afternoon. As soon as I got connection with some patron
of the store, I told her about Nora's plight—most of them
remembered her face. I tried to make them realize how desperately
little six dollars a week is. I told the story of her hard struggle to
keep the home going, how the firm had refused to give her a raise
and were now trying to send her to state prison. I spoke as strongly
as might be about personal responsibility. The firm paid low wages
so that their patrons might buy silk stockings at a few cents less per
pair. And low wages had driven Nora to crime. I laid it on as heavily
as I dared and asked them to call up the manager and members of
the firm—to get them personally—and protest against their severity
towards Nora. I urged them to spread the story among their friends
and get as many of them as possible to threaten to withdraw their
trade.
I started this campaign about three in the afternoon and kept it
up till after business hours. It bore fruit. Some of the women, I
found out afterwards, went further than I had suggested and called
on the wives of the firm. I imagine that the men, who had refused to
see me, did not spend a peaceful or pleasant afternoon and evening.
In the morning, when Nora's case was called, the attorney
made a touching speech about the quality of mercy and how to err
is human, to forgive divine. He said that the firm he represented
could not find heart to prosecute this damsel in distress and that if
the court would be merciful and give her another chance they would
take her back in their employment. Judge Ryan was surprised, but
very glad to discharge her. However, I was able to find her a much
better place to work.
Her story is a sad commentary on our system of justice. The
court did not care to offend a group of wealthy men. The press did
not dare to. The only way to get justice for this girl was by appealing
to the highest court—the power of money.
It is always hard for me to write about our method of dealing
with crime in restrained and temperate language—the whole system
is too utterly vicious. I had not been many weeks in the Tombs
before I was guilty of contempt of court.
Four of the five judges in general sessions were machine men.
It was rare that their judgments were influenced by their political
affiliations; in the great majority of the cases they were free to
dispense what happened to strike them as justice. It is simpler for
the organization to "fix" things in the police courts where there are
no juries. But once in a while a man would come up to us who "had
a friend." The "Old Man" on Fourteenth Street would send down his
orders and one of these four judges would arrange the matter. The
impressive thing about it was the cynical frankness. Everybody knew
what was happening.
The fifth judge, O'Neil, was a Scotchman. He was said to be—
and I believe was—incorruptible. He had been swept into office on a
former wave of reform, and had no dealings with the machine. But
he was utterly unfit to be on the bench. A few weeks after I was
sworn in, I saw a phase of his character which was worse than
"graft."
A man was brought before him for "assault"—a simple exchange
of fisticuffs. In general such cases are treated as a joke. Two men
have a fight—then they race to the police station. The one who gets
there first is the complainant, the slower footed one is the
defendant. Each brings a cloud of witnesses to court to swear that
the other was the aggressor. It is hopeless to try to place the blame.
The penal code fixes a maximum sentence of one year and five
hundred dollars fine, but unless some especial malice has been
shown, the judges generally discharge the prisoner with a
perfunctory lecture or, at most, give them ten days.
This man had an especially good record. He had worked
satisfactorily for several years in the same place, his wife and her
three small children were entirely dependent upon his earnings.
O'Neil skimmed over his recommendations listlessly, until his eye
caught a sentence which told the nature of the man's employment.
He stiffened up with a jerk.
"Are you a janitor?" he thundered.
"Yes, your honor."
"Well, I tell you, sir, janitors must be taught their place! There is
no more impudent, offensive class of men in this city. This morning,
sir, there was no heat in my apartment, and when my wife
complained the janitor was insolent to her! Insulted her! My wife!
When I went downstairs he insulted me, sir! The janitor insulted me,
I say! He even threatened to strike me as you have wantonly
assaulted this reputable citizen here, the complainant. It is time the
public was protected from janitors. I regret that the law limits the
punishment I can give you. The court sentences you, sir, to the
maximum. One year and five hundred dollars!"
The outburst was so sudden, so evidently a matter of petty
spite, that there was a hush all over the court.
"What's the matter?" his honor snapped. "Call up the next
case."
Of course this sentence would have been overthrown in any
higher court, but the man had no money. Such things did not
happen very often, but frequently enough to keep us ever reminded
of their imminent possibility.
I have sixty fat note-books which record my work in the Tombs.
Almost every item might be quoted here to show how little by little
contempt of court grew in my mind. It crystallized not so much
because of the relatively rare cases where innocent men were sent
to prison, as because of the continual commonplace farce of it.
 Very early I learned—as the lawyers all knew—that
considerations of abstract justice were foreign to the Tombs. Each
judge had his foible. It was more important to know these than the
law. Judges McIvor and Bell were Grand Army men. Bell was always
easy on veterans. He had a stock speech—"I am sorry to see a man
who has fought for his country in your distressing condition. I will be
as lenient as the law allows." McIvor, if he saw a G.A.R. button on a
man before him would shout, "I am pained and grieved to see a
man so dishonor the old uniform," and would give him the
maximum.
Ryan, the most venal, the most servile machine man of the five,
had a beautiful and intense love for his mother. A child of the slum,
he had supported his mother since he was fourteen, had climbed up
from the gutter to the bench. And filial love, like his own,
outweighed any amount of moral turpitude with him. When I found
a man in the Tombs who seemed to me innocent, I did not prepare a
brief on this aspect of the case. I looked up his mother, and
persuaded the clerk to put the case on Ryan's calendar. If I could get
the old woman rigged up in a black silk dress and a poke bonnet, if I
could arrange for two old-fashioned love-locks to hang down before
her ears, the trick was turned. All she had to do was to cry a little
and say, "He's been a good son to his old mother, yer honor."
The cases were supposed to be distributed among the judges in
strict rotation. It was, in fact, a misdemeanor for the clerk to juggle
with the calendar. But the largest part of a lawyer's value depended
on his ability to persuade the clerk to put his client before a judge
who would be lenient towards his offense.
 O'Neil believed that a lady should be above suspicion. So when
a woman was accused of crime, she was certainly not a lady, and
probably guilty. It was for the good of the community to lock her up.
Of course whenever a lawyer had a woman client his first act was to
"fix" the clerk so that the case would not be put down before O'Neil.
Yet I would be eminently unfair to the people of the Tombs, if I
spoke only of their evil side. Of course this was the side I first saw.
But by the end of a year I had established myself. Once they had
lost their fear that I was trying to interfere with their means of
livelihood—a fear shared by the judges as well as the screws—
hostility gave place to tolerance, and in some cases to respect and a
certain measure of friendship. I began to think of them, as they did
of themselves, as dual personalities. There was sinister symbolism in
the putting on of the black robes by the judges. The screws out of
uniform, in off hours, were very different beings from the screws on
duty.
It is a commonplace that machine politicians are big-hearted.
They listened to any story I could tell of touching injustice, often
went down in their pockets to help the victim. I have never met
more sentimental men. All it needed to start them was a little "heart
interest." Frequently Big Jim, the gate man, would raise ten or
fifteen dollars from the other screws to help out one of my men.
Judge Ryan met me one day on the street and invited me into a
saloon. There began a very real friendship. Off the bench he was a
most expansive man; he had wonderful power of personal anecdote.
In the story of his up-struggle from the gutter, his mother on his
shoulders, he was naïve in telling of incidents which to a man of my
training seemed criminal. He owed his first opportunity, the start
towards his later advancement, to Tweed. And he was as loyal to
him as to his mother. The soul of the slum was in his story. It was an
interpretation of the ethics which grow up where the struggle for
existence is bitter. An ethics which is foul with the stink of fetid
tenements, wizened with hunger, distorted with fear.
The attitude of the people of the Tombs to this dual life of
theirs, the insistence with which they kept separate their
professional and personal life, was shown clearly when a young
assistant district attorney broke the convention. He brought his wife
to court! He was a youngster, it was his first big case, he wanted her
to hear his eloquence. The indignation was general. I happened to
be talking to Big Jim, the gate man, when one of the screws brought
the news.
"What?" Jim exploded. "Brought his wife down here? The son of
a ——! Say. If my old woman came within ten blocks of the place—
or any of the kids—I'd knock their blocks off. Go on. Yer kidding me."
When they insisted that it was true, he scratched his head
disgustedly and kept reiterating his belief in the chap's canine
ancestry. Two hours later, when I was going out of the Tombs, he
stopped me. It was still on his mind.
"Say," he said, "what d'ye think of that son of a ——?"

III

It did not take me very long to see that the trouble with our criminal
courts goes deeper than the graft or ill-temper of the judges. Day
after day the realization grew upon me that the system itself is
wrong at bottom.
A man can do a vicious thing now and then without complete
moral disintegration. It is constant repetition of the act which turns
him into a vicious man. Brown may once in a while lose his temper
and strike his wife, and still be, on the whole, an estimable fellow.
But if he makes a regular habit of blacking her eye every Saturday
night, we would hold him suspect in all relations. We would not only
question his fitness to bring up children, we would doubt his
veracity, distrust him in money matters.
The more I have been in court the stronger grows the
conviction that there is something inherently vicious in passing
criminal judgment on our fellow men. A Carpenter who lived in
Palestine two thousand years ago thought on this matter as I do. His
doctrine about throwing stones is explicit. If he was right in saying
"Judge not," we cannot expect any high morality from our judges.
The constant repetition of evil inevitably degrades.
Unless we can expect our judges to be omniscient—and no one
of them is so fatuous as to believe himself infallible—we are asking
them to gamble with justice, to play dice with men's souls. We give
them the whole power of the state to enforce their guesses. The
counters with which they play are human beings—not only individual
offenders, but whole families, innocent women and children. Such an
occupation—as a steady job—will necessarily degrade them. It would
change the Christ Himself.... But he said very definitely that He
would not do it.
However, my work in the Tombs has not made me a pessimist.
Science has conquered the old custom of flogging lunatics. The
increase of knowledge must inevitably do away with our barbaric
penal codes, with cellular confinement and electrocution. An
enlightened community will realize that the whole mediæval idea of
punishing each other is not only a sin—according to Christ—but a
blunder, a rank economic extravagance, as useless as it is costly. We
will learn to protect ourselves from the losses and moral contagions
of crime as we do from infectious diseases. Our prisons we will
discard for hospitals, our judges will become physicians, our
"screws" we will turn into trained nurses.
The present system is epileptic. It works out with unspeakable
cruelty to those who are suspected of crime—and their families—it
results in the moral ruin of those we employ to protect us, and it is a
failure. The amount of money which society expends in its war
against crime is stupendous—and crime increases. All statistics from
every civilized country....
But this personal narrative is not the place for me to discuss in
detail my convictions in regard to criminology.

IV

The influence of the Tombs on my way of thinking was slow and

cumulative, here a little and there a little. I got a more sudden
insight into some of the ways of the world, some of its stupidities
and pretenses, from the peculiar circumstances under which Benson
and I were thrown out of the settlement. I had been there almost
two years when the crash came. In this affair, I was little more than
the tail of his kite. That is the fact I wish to emphasize. Benson was
I think beyond any doubt, the most valuable "resident" in the
Children's House. It was not only that he gave much money into the
general treasury and that he gave far more to such subsidiary
enterprises as his Arbeiter Studenten Verein, all of which gave added
prestige to the settlement, but also his personality was a great asset.
Through his professional and social connections he was continually
recruiting new supporters. And certainly to the people of the
neighborhood, he was the most popular of us all. And yet to
preserve certain stupid ideas of respectability, Benson was sacrificed.
The Jewish population—penniless refugees from Russian
massacres—had been growing rapidly in our district. They had
almost entirely driven out the Germans and Irish. And as a result of
their intense poverty, prostitution was becoming frightful. There
were red lights all about us. To the thoughtful Jews this had become
the only political issue. The machine was cynically frank in its
toleration of vice. Two years before a man named Root had been
elected congressman on the reform ticket. It was pretty generally
known that he had used his time in office to make peace with the
machine. And although he still talked of reform, he was so friendly
with the enemy that they had nominated a figure-head named
O'Brien. But this Democratic candidate was only for appearances, we
all knew that Root was to be re-elected and that Tammany votes
were promised him.
Benson shared my hatred of hypocrisy. We often talked over this
political tangle.
"I'd like to get the evidence against him," Norman said one
night. "Nothing I'd like better than to shoot some holes into his
double-faced schemes."
 I gathered a good deal of information, which if it was not legal
evidence, was certainly convincing. The Tombs was a great place for
political gossip. I was almost the only person there at this time who
was not a Tammany man. And as in my two years of work I had
taken no interest in politics, I was considered innocuous. From
scraps of conversation I learned that there had been a meeting
between Root and the Old Man and some treaty made between
them. I could guess at the terms. The organization was to throw
enough votes to elect Root, and he was to keep too busy in
Washington to interfere in local affairs. But I did not dare to ask
questions, and had no idea when or where the agreement had been
reached. By the barest chance I was able to fill in these details:
Coming up the Bowery late one night, I ran into a crowd who
had made a circle around two girls who were fighting. Just as I
arrived on the scene one of the girls called out——
"Charley—give me a knife."
Her cadet handed her one with a very ugly looking blade. I
seldom used my right as county detective to make arrests. But as
this seemed to threaten serious bloodshed, I broke up the fight and
collared the cadet. He turned out to be a man of some importance in
politics, a runner for "The Old Man." Two or three times he had been
arrested, but his pull had always got him off.
He was half drunk and in a great funk over the serious charge I
said I would make against him. As I was jerking him along towards
the station house, he threatened me with dire consequences if I ran
him in—said he was a friend of the Old Man. I pretended not to
believe him, and in his effort to convince me that he really was
protected, he let the cat out of the bag. He had been the messenger
from the "Old Man" to Root, and had arranged for the meeting
between them. It had taken place on the evening of September
third, in the back room of Billy Bryan's saloon. He did not know what
had happened at the meeting, the only person present beside the
two principals had been a "heeler" of Root's, named "Piggy" Breen.
There was no use in arresting a man with his "pull," so I turned him
loose.
I hurried back to the settlement and telephoned for Benson at
his club. He brought along Maynard to give us legal advice. Maynard
was an erratic millionaire. One-third of the year he played polo, one
third he spent in entering his 75-foot sloop in various club regattas,
and the rest of the time he lived in the city, leading cotillions at night
and maintaining a charity law office in the day-time. He was also a
trustee of the settlement. He was wildly indignant over the story of
Root's treachery.
"We can defeat Root, dead easy," Benson said. "It's a cinch.
Publicity has never been tried in politics" (as far as I know, Benson
invented this term "publicity," now so commonly applied to organized
advertising)—"it's a cinch. In less than twenty-four hours everybody
in the district will know he's a crook."
"What reform man can we get to run in his place?" Maynard
asked.
"Hell!" Benson said. "We haven't time to nominate anybody—
election is only a week off. I don't care who's elected so we put Root
out of business."
"Well, but," Maynard protested, "we don't want to throw the
influence of the settlement in favor of Tammany Hall."
 "We don't need to. There must be some other candidates—
Socialist or Prohibition—just so he isn't a red-light grafter."
"There isn't any Prohibition ticket," I said. "The Socialist
candidate is named Lipsky."
"All right," said Benson, "we'll elect Lipsky."
Maynard went up in the air. Help elect a Socialist! He did not
believe in political assassinations.
"Oh, devil!" Benson snapped. "Would you rather see one of
these cadet politicians in office than an honest working man? I don't
know who this man Lipsky is, like as not a fool who sees visions. But
the Socialists never nominate crooks. What we want is an honest
man."
Maynard, however, did not believe in community of wives, felt it
necessary to protect the sanctity of the home—even at the cost of
prostitution. And so he left us.
I wish I could remember half the things Benson said about
Maynard after he had deserted us. I have seldom seen anything
more invigorating than Benson mad. But he did not let his
indignation interfere with business. It was far along towards
morning, but he set to work at once. He wrote to Lipsky promising
to support him, and then began sketching cartoons and posters.
One was a picture of Root selling a girl in "parlor clothes" to
"The Old Man." Another read:

"VOTE FOR LIPSKY

if you have a daughter!
If you vote Democratic, you
Vote for the RED LIGHTS!
If you vote Republican, you
Vote for the CADETS!
VOTE THE SOCIALIST TICKET, and you
VOTE FOR DECENCY!"

But the best were a series:

"ASK ROOT
where he was on the evening of September Third?"
"ASK ROOT
what business he had with the Old Man?"
"ASK ROOT
how much he got?"

Having mailed the letter to Lipsky and sent off the copy to the
printer, we turned in just at sun-up.
We were awakened a few hours later by the arrival of a socialist
committee. There was Dowd, a Scotch carpenter; Kaufmann, a
brewery driver, and Lipsky, the candidate. He was a Russian Jew,
and had been a professor in the old country. He could speak very
little English, but he had served a long term of exile in the Siberian
prison mines.
The socialists had no idea of winning the election. The
campaign was for them only a demonstration, a couple of months
when they had larger audiences at their soap-box meetings. They
were suspicious of us.
 That consultation is one of the most ludicrous of my memories.
Benson, sitting in an arm-chair, in blue silk pajamas, smoking
cigarettes, outlined the plan in his fervent, profane, pyrotechnic way
—much of which was beyond their comprehension. Kaufmann had to
translate it into German for Lipsky. And when we talked German,
Dowd could not understand.
"But," said Herr Lipsky, when the posters had been translated to
him, "there is nothing there about our principles. There is no word
about surplus value. It is not the red lantern we are fighting—but
the Kapitalismus."
"The people," Benson raged—"the people with votes don't know
surplus value from the binominal theorem. Perhaps they will vote for
their daughters—they can see them. But they won't get excited
about their great-great-grandchildren."
There was a squabble among the committee-men. The
Scotchman was too canny to take sides; he wanted to refer the
matter to the local, which was not to meet until two days before the
election.
"Aber," said the brewery man, "Ve need etwas gongrete."
Lipsky accused him of being a "reformer."
After an hour's wrangle, it was decided that they could not stop
us from attacking Root. But we were to hold up the posters asking
votes for Lipsky. He would not permit his name to be used without
the consent of the local.
As they were going downstairs, I heard Kaufmann protesting
—"Aber, Genossen—ich bin eine echte revoluzionaire!"
So Benson ran the campaign unaided. The effect of his posters
was electric. The next day he brought out some more:—
 "ASK THE OLD MAN."

Of course they both denied. But as the posters made no specific

allegations, they did not know what to deny. Their output was
conflicting. During the afternoon, Benson stirred things up again
with a series—
"IF ROOT WON'T TELL, ASK 'PIGGY' BREEN."

Breen was rattled, and said it was all a lie, that the red light business
had not been discussed at the meeting in Billy Bryan's saloon. Both
Root and the Old Man had denied the meeting. So Benson had them
on the run. The more they explained the worse they tangled things.
The cadet from whom I had forced our information, fearing the
wrath of The Old Man, was of course keeping his mouth shut. We
did not give away on him. So they could not guess Benson's source
of knowledge, and would have given anything to know just how
much he knew.
The Socialist local nearly broke up over the affair. A number
were absolutely set against accepting aid from a "Bourgeois
philanthropist," like Benson. Lipsky was in a violently embarrassing
position. Suddenly there was a good chance of his election. The
people of the district were manifestly excited over the issue. They
were ready to vote for any one who would promise effective war
against the cadets. It must have been a frightful temptation to him.
But he stood fast for his principles. He did not want to be elected on
a chance reform issue. If the people of the neighborhood stood for
Marxian economics, he would be glad to represent them. But he
would have nothing to do with demagogy.
 On the other hand, a young Jewish lawyer named Klein was the
Socialist candidate for alderman, and he saw a chance of being
elected on the "Down with the red light" cry. He was ready to tear
the hesitaters to pieces. He felt that the social revolution and
universal brotherhood only awaited his installation in office.
At last it was agreed that a mass meeting should be called in
the Palace Lyceum on Grand Street and that Klein and Benson
should speak on the red light issue and Lipsky on economics. We
brought out the "Vote the Socialist Ticket" poster.
Benson was at the very top of the advertising profession, and
he certainly threw himself headlong into this job.
"I've persuaded about fourteen million people to buy Prince of
Wales Aristocratic Suspenders," he said. "I don't see why I can't
persuade a few thousand to vote right once in their lives."
He certainly did marvels at it.
The night before election, the Palace Lyceum was packed to the
roof. And this in spite of the organized efforts of the strong-arm men
of the machine. But the meeting was a miserable fizzle. Benson was
helpless between those two speakers.
Klein's discourse consisted in telling what he would do if elected
—among other things, I recall, he was going to nationalize the
railways and abolish war.
Benson was not much of a public speaker. As far as I know, it
was his one attempt. But his success at advertising was based on his
knowledge of the people and how they thought. They were not
interested in Klein or the nationalization of the railroads. The one
thing which moved them was the sale of their daughters. Benson
went right to the point, reminded them of it in a few words, and
then told the story of Root's treachery, piecing together our facts
and guesses. "It is not legal evidence," he said, "you can take it for
what it is worth. It's up to you—tomorrow at the voting booths."
"To hell with Root!" somebody yelled.
"There's only one candidate better than Root," Benson shouted
back,—"Lipsky!"
When they got through cheering, he gave them the words of a
song he had written to "Marching through Georgia." He had trained
the Männer Chor of the Arbeiter Studenten Verein to sing it. It
caught on like wildfire. I am sure that if the meeting had broken up
then, and they could have marched out singing that song, Lipsky
would have been elected overwhelmingly. But Lipsky spoke.
"Der Socialismus ruht auf einer fasten ekonomischen
grundlage...."
For twenty minutes in deadly German sentences he lectured on
the economic interpretation of history. Then for twenty minutes he
analyzed capitalism. Then he drank a glass of water and took a fresh
start. He referred to Klein's speech and pointed out how the election
of one or a hundred officials could not bring about Socialism; the
only hope lay in a patient, widespread, universal organization of the
working class. Then in detail he discussed the difference between
reform and revolution, how this red light business was only one by-
product of the great injustice of exploitation by surplus value.
When he had been talking a little over an hour, he said "Lastly."
He began on a history of the International Socialist Party from its
humble beginning in Marx' Communist League to its present gigantic
proportions.
 On and on he drawled. Many got up and left—he did not notice.
Someone in the gallery yelled,
"Cheese it! Cut it out! We want Benson!"
He went right on through the tumult, and at last discouraged
the disturbers. The recent International Socialist Congress had
discussed the following nine problems: (1) The Agrarian Question,
(2) The Relation of the Political Party to Trade Unions.... It was
hopeless. The audience melted. And they did not sing as they left.
At last he was through. I remember the sudden transformation.
The set, dogged expression left his face, as he looked up from his
notes. His back straightened, his eyes flashed—a light came to them
which somehow explained how this dry-as-dust professor of
economics had suddenly left his class-room and thrown his weak
gauntlet at the Tsar of all the Russias. It was the hope which had
sustained him all the weary years in Arctic Siberia.
"Working-men of all lands—Unite!" he shouted it out to the
almost empty house—his arms wide thrown in his only gesture
—"You have nothing to lose but your chains! You have a world to
gain!"
There was a brave attempt at a cheer from the few devoted
Socialists who remained. The exultation left him as suddenly as it
had come, and he sat down, a tired, worn old man. Klein rushed at
him, with tears in his eyes. "You've spoiled it all!" he wailed. The old
man straightened up once more.
"I did my duty," he said solemnly.
When the returns came in the next night, the Socialist vote had
jumped from 250 to 1800. Root had only 1,000. O'Brien, the
machine candidate, won with 2,500. At the last moment, the Old
Man, seeing that Root was hopelessly beaten, had gone back on his
bargain and sent out word to elect O'Brien.
"The funny thing about the Socialists is," Benson said to me,
"that they are dead right. Take Lipsky. He's a dub of a politician, but
pretty good as a philosopher. Wasn't it old Mark Aurelius who wanted
the world ruled by philosophers—not a bad idea—only it's
impracticable. They are right to suspect us reformers. Nine out of
ten of the settlement bunch are just like Maynard—quitters when it
comes to the issue. They'd like to uplift the working class, but they
don't want to be mistaken for them. And after all this red light
business is only a symptom. You and I and Lipsky can afford to be
philosophic about it—we haven't any daughters. But the fathers who
live in this dirty district—they ask for bread—not any philosopher's
stone. Any way, we fixed Root, and that is what we set out to do."
"It cost me a lot of money," he said later. "And I did not want to
go broke just now. There is a bunch of swindlers out in Chicago with
a fake shoe polish they want me to market. It will ruin a shoe in two
months. They are offering me all kinds of money. I hate to go to it—
but I guess I'll have to."
He sat down to his desk and began studying his bills and bank-
book.
"How would 'shin-ide' do for a bum shoe-polish?" he said,
looking up suddenly. "'Shin-ide. It puts halos on your shoes.'"
Our sudden burst into politics, at least Benson's—my small part
in it was never known—attracted a good deal of newspaper notice.
Certainly Root realized where his troubles started, and he went
heartily about making us uncomfortable.
 A couple of mornings after election, the Rev. Mr. Dawn, the
head-worker, came to our room, his hands full of newspapers and
letters—the "corpus delicti."
I wish I could give more space to Dawn. He was a thoroughly
good man. And although we judged him harshly at the time, I think
an admirable man. At least, I feel that I ought to think so about him,
but some of the old contempt still clings to his memory.
His whole soul was wrapped up in the settlement movement.
Socialism was repellent to him because it insisted on the existence of
class lines. He had come to America from England because the class
distinctions—so closely drawn there—were repugnant to him. He
hoped in our young Republic to see a development in the opposite
direction. His hope blinded him.
And in spite of his loudly-professed Democracy, he was
essentially aristocratic in his ideas of social service. The solution of
our manifest ills he expected to find in the good intentions of the
"better bred." Their loving kindness was to bring cheer and comfort
to the lowly. His faith in the settlement movement was real and
great, which of course made him very conservative in the face of any
issue which involved its good repute.
"You people seem to have seriously offended Mr. Root," he
began.
"You don't say so!" Benson replied. He was shaving.
Dawn could not understand Benson's type of humor.
"I am afraid you have," he said.
Benson cut himself.
"I don't remember having called him anything worse than a
cadet," he said sweetly.
 "Oh, I see you are joking."
"No. I did call him that."
"I'm sorry to hear you say it. Sorry to have you verify the report
that you used intemperate language. I have never met Mr. Root. But
he has many friends among...."
"The best people?" Benson interrupted.
"I was about to say among our supporters. It is most
regrettable that your ill-advised attack on him may alienate many of
them. It seems also that you have dragged the name of the
settlement into the mire of Socialism. I must confess that I hardly
know—that, in fact, I am at a loss...."
"You needn't worry about it. Whitman and I will leave. All you
have to do is to roll your eyes if we are mentioned, and say—'Yes. It
was most regrettable—but of course they left the settlement at
once!' Invite Root to dinner a couple of times. Walk up and down
Stanton Street with him—arm in arm. It will blow over—it will square
everything with 'the best people'!"
"I am sorry to hear you speak so bitterly," Dawn said, "But
frankly, I think it wisest that you should sever your connection with
us. When the welfare of the whole settlement movement is at stake,
I cannot allow my personal feelings to blind my...."
"Oh, don't apologize. There is no personal ill-feeling."
And so we left the settlement.

BOOK V
 I

Benson and I set up housekeeping in the top floor of an old mansion

on Eldridge Street. Once upon a time it had boasted of a fine lawn
before it, and of orchards and gardens on all sides. But it had been
submerged in the slums. You stepped out of the front door onto the
busy sidewalk, and dumb-bell tenements springing up close about it
had robbed it of all its former glory. Two mansard bedrooms in the
front we threw together, making a large study. We put in an open
fire-place, built some settees into the walls and before the windows.
There were bookcases all about, some great chairs and a round
table for writing and for meals. Of the rooms in the back we
arranged two for sleeping, turned one into a kitchen and a fourth
into a commodious bath. With his usual love for the incongruous,
Norman nicknamed the establishment—"The Teepee."
In my work in the Tombs I had one time been able to clearly
show the innocence of an old Garibaldian, who was charged with
murder. He felt that he owed his life to me, and so became my
devoted slave. His name was Guiseppe and he had fought for Liberty
on two continents. It was hard to tell which was the more
picturesque, his shaggy mane of white hair or his language—a
goulash of words picked up in many lands. Within his disappointed,
defeated body he still nursed the ardent flame of idealism. The spirit
of Mazzini's "Young Italy," the dream of "The Universal Republic"
lived on in spite of all the disillusionment which old age in poverty
and exile had brought him.
In the Franco-Prussian War, while campaigning in The Vosges,
he had cooked for the Great Liberator. We installed him in the
kitchen of the Teepee. His especial pride was a pepper and garlic
stew which Garibaldi had praised. This dish threatened to be the
death of us. It was the trump he always led when in doubt.
 II

During the years I was in the settlement, I received regularly two

letters a month from Ann. They were never sentimental. They dealt
with matters of fact. Norman's uncle and aunt had interested
themselves in her ambition and had allowed her much time to study.
At first her work in Pasteur's laboratory had consisted in cooking
bouillon for the culture of bacteria. It did not seem very interesting
to me, but it fascinated her. She even sent me the receipt and
detailed instructions about using it. After awhile she had been
promoted to a microscope and original research. She soon attracted
Pasteur's attention and he offered her a position as his personal
assistant. Her employers were immensely proud of her success and,
securing another nurse, released her. She was enthusiastic over this
change. She could learn more, she wrote, watching the master than
by any amount of original work.
It was part of her character that her letters gave me no picture
of Paris. She had no interest in inanimate things, no "geographical
sense." I knew the names and idiosyncracies of most of the
laboratory assistants, she gave me no idea of Les Invalides, near
which she lived. There was much about the inner consciousness of a
German girl with whom she roomed, but I did not know whether the
laboratory was in a business or residential section of the city. She
wrote once of a trip down the river to St. Cloud, and all she thought
worth recording was the amusingly idiotic conversation of an
American honeymoon couple, who sat in front of her, and did not
suspect that she understood English.
Although she wrote so much about people, the characters she
described never seemed human to me. She did not understand the
interpretive power of a background. Her outlook was extremely
individualistic. Auguste Compte wrote somewhere that there is much
more of the dead past in us than of the present generation. I would
go further and say that there is much more of the present
generation in us than there is of ourselves. If we stripped off the
influence of our homes, of our friends, of the contempore books we
read, of our thousand and one social obligations, there would be
precious little left of us. Ann carried this stripping process so far that
even Pasteur, for whom she had the warmest admiration, seemed to
me a dead mechanism.
She never referred to our personal relations, never spoke of
returning to America. And I avoided these subjects in my answers. I
was afraid of them.
I thought about her frequently and almost always with passion.
I dreamed about her. Fixed somewhere in my brain was a very
definite feeling that such emotions ought not to exist apart from
love. I was not in love with Ann. Her letters rarely interested me. It
was a task to answer them. Our contacts with life were utterly
different.
I kept to the "forms" of chastity. There are those who believe
that there is some virtue in preserving forms. I have never felt so. It
did not require much effort to keep to this manner of life. I was
constantly observing prostitution from the view-point of the Tombs.
And to anyone who saw these women, as I did, in their ultimate
misery and degradation, they could excite nothing but pity. There is
no part of the whole problem of crime so utterly nauseating.
Although I held myself back from what is called "vice," the state of
my mind in those days was not pleasant,—and I think it was not
healthy. It was no particular comfort for me to learn that other men,
living, as I was, in outward purity, were also tormented by erotic
dreams.
Shortly after we moved into the Teepee a letter came from Ann
which was bulkier than usual. The first pages were a statement of
new plans. An American doctor, who had been working with Pasteur,
was returning to establish a bacteriological laboratory in this country.
He had offered her a good salary to come with him as his chief
assistant. The laboratory was to be built in Cromley, a Jersey suburb,
thirty minutes from the city. As soon as it was ready she was
coming. It would be interesting, responsible work and she could
make a home for her mother who was becoming infirm.
The rest, pages and pages, was a love letter. Every night, these
years of separation—so she wrote—had been filled with dreams of
me. As always she put her work above her love. Bacteriology was
the great fact of her life. She held it a treason to reality when, as so
often happens, people lose their sense of proportion and allow love
to usurp the place of graver things. But now that her work brought
her towards her love, she looked forward to a fuller life—a life
adorned.
The letter brought a great unrest. Her passionate call to me
certainly found an echo. I lost much sleep—tormented, intoxicated
with the images her words called up. Years before an immense
loneliness had pushed me into the comfort of her arms. This was no
longer the case. My life was full, almost over-full of work and friends.
But the pull towards her seemed even more irresistible now than
before.
Marriage seemed to me the only worthy solution. But even more
clearly than in the hospital days I knew I did not want to marry her.
It was, I suppose, above all because I did not love her. It was partly
because I liked my bachelor freedom, the coming and going without
reference to anyone. It was partly my deep attachment to Norman. I
felt he would not care for Ann. Anyway it would break up our
household in the Teepee.
At last a letter came setting the date of her arrival. It coincided
with a long-standing engagement I had made to lecture on
criminology in a western college. I had an entirely cowardly sense of
relief in the realization that the meeting and adjustment were
postponed. But I thought of little else. Returning from my lectures,
on the long ride across half the continent, with the knowledge that
Ann was awaiting me in the city, that I could postpone things no
longer, I won to a decision. I would see her at the earliest
convenience—it seemed more straightforward to see her than to
write—and tell her that I did not wish to recommence our intimacy. I
might not be able to explain why I wanted to break with her, but I
could at least make it plain that I did.
On my return, I found a letter waiting me in the Teepee. It
contained her telephone number and a query as to when I could
come out for dinner. I called her up at once. I would come that very
day. The train out to Cromley seemed perversely slow. I was
impatient to be through with it, to get back undisturbed to my work.
It was only a short walk from the station to her house. The row of
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