For the past twenty-two months, my old office, the New York State Attorney General’s complaint mediation program, has been empty but for two people: a file clerk and a staff member who processes the day’s mail. COVID-19 is the explanation, of course. But I can’t imagine how that program can possibly flourish in empty rooms.
I used to run that program, after having litigated consumer cases for four years. I regard litigation as a last resort. It’s time-consuming, expensive and the ultimate results uncertain. But sometimes filing a lawsuit is the only way to stop people from doing harm. More gratifying to me were the times I was able to use the name of the office to intercede in a conciliatory way to solve disputes. That’s how I helped move a shipment of relief provisions to a starving Eritrea that were stuck in Germany’s Bremerhaven over a payment dispute between two U.S. companies. When my office got involved, with me its instrument, the dispute was set aside in favor of meeting a desperate human need.
This capacity to use the powerful office’s name for good made me enthusiastic when I was asked to run the office’s mediation program. Mediation isn’t, or certainly wasn’t, deemed high profile among lawyers. None of my lawyer colleagues had any interest. However, after I assumed the role, I realized that low status was an asset. Our intervention inevitably implied an unspoken threat that if a company failed to conform its practices to legal standards, the office would come after them with lawyers and, even more terrifying, our press office. Better to deal with us than all that.
You may well ask how I can use the word “mediation” in almost the same breath as “threat.” Although no one ever challenged me on this score, I keenly felt the conundrum. In reality, many complaints involved misunderstanding or some degree of legitimate disagreement, in which case our efforts were aimed at smoothing over differences to help the parties reach a resolution. But sometimes a company remained steadfast in its determination to mislead their customers. That’s when I’d have the mediator escalate the matter from pure mediation to activist intervention. Usually in a letter, we’d lay out why we believed the company was doing something wrong, suggest remedies, and urge them to write back with assurances that they would meet our requirements. Sometimes I’d invite company representatives to the office. Compliance was ostensibly voluntary, but they’d worry that failure to come risked some serious law-enforcing.
In a good outcome, we not only resolved the individual complaint and spared future consumers from a similar experience, but we also made the field fairer for competing businesses. Once in a great while, I’d refer an intransigent company to my former litigation colleagues.
At the program’s height, we had eight full-time and ten paid student intern mediators. I got authorization to go outside the office’s usual systems to reach out to local universities, and during my fourteen years with the program, we attracted a long line of bright and energetic students. There was a delightful camaraderie within the group that outsiders noticed.
As a litigator, I’d limited my contacts with my colleagues in order to get my work done. However, as head of the mediation program and its only lawyer, I had to make myself available for the staff. There might be a few consumer interviews going on in the reception area, a thorny problem encountered by a mediator in the middle of a phone call, a policy issue to be resolved with the full-time staff, and so on. Had I shut myself off, any delay I thus caused would only have compounded the time involved not only for me but, more importantly, for our consumers and the staff.
The complaints we handled covered the gamut from routine mail-order and Internet matters to truth-in-lending law violations; from erroneous hotel room charges to a new pair of squeaking shoes; from misrepresented cars to, memorably, a dildo that the consumer said didn’t function the way it was supposed to. One moment, a mediator would be agitated because a car dealer was outright lying to us, the next a couple of students would rush in barely able to hold back laughter until they closed the door behind them. In almost any public service job, you’re bound to encounter the ludicrous along with the distressing. Dedication, diligence and gallows humor flourished side-by-side as we processed up to eighteen thousand complaints a year, as many as one-sixth of which we handled as mediations. The rest were referred to other licensing agencies or disposed of in some other manner.
As a blind lawyer, I relied heavily on readers. True, as the eighties turned into the nineties, I could do a lot of work independently on my speech-synthesize computer. However, I had to do most of that computer work at home, outside regular office hours. Why? Complaints were often handwritten, as were the conscientious annotations in the mediation file folders, and my computer couldn’t process them. Also, because our technology staff were unable to give me access to our databases, I had to rely on my readers to read aloud statutes and caselaw. But our reading work was constantly interrupted by those mediator and receptionist questions, queries from other parts of the office, calls from the outside world, and a host of other worthwhile distractions.
The Attorney General is an elected official. I’d survived three administrations and had begun my fourth when I recognized the time had come for me to resign. I’d miss the mediation group, always lively and challenging despite periodic turnover. I had several reasons. On the positive side, creative writing had always been my first love, and while doing a more than full-time job, I couldn’t get the practice I needed despite writing at dawn and on weekends. The other reasons were negative, including inadequate technological support. I could never get critical people in the administration to recognize these needs. One high-up official told me he didn’t even have a computer, failing to comprehend that technology makes all the difference for visually impaired lawyers. Besides that long-running frustration, the new administration was making decisions about the mediation program without consulting me. I was being sidelined. It was all very upsetting and, to my lasting regret, I left with bridges burned.
But leaving was the best thing I could have done. I succeeded in dedicating myself to the craft of writing, which is perhaps about to bear fruit. But nothing has made me more relieved to be gone than learning how COVID-19 has ended the spontaneity that was the mediation program’s hallmark. Now all communication is done remotely by phone and computer. No more can there be the joy of learning something from a colleague’s casual aside or the morale-boost of reality-grounding humor.
Working at home and with a close and reliable network around me, I’ve been insulated from the socially isolating part of this pandemic. Now, images of those empty offices force on me a greater awareness of how office workers’ lives have been devastated. Collegiality is critical to morale, and morale is critical to performance. That program and our entire world are hurting in ways we can’t possibly calculate.