A Lawyer’s Quest Towards A Better Way
My Uncle Mike was nearing death when he asked my father, “Please forgive me.”
My father replied, “Of course, I forgive you. You are my brother.”
Legal disputes can tear apart a family. A few decades earlier, my father gave up finishing highschool because my grandfather asked him to support our family and take care of rental properties. When the time came to divide my grandfather’s inheritance, his brother and his younger sister ended up suing him. It was an awful experience growing up, particularly when my parents had to give depositions. Mentally depleted, my mother then told my father to give them whatever they want. She just wanted peace. After the lawsuit, my father stopped talking to his brother.
However, decades later, when his brother was terminally ill, he asked my father to come visit. My father reluctantly agreed after I reminded him Uncle Mike is family, even though they didn't talk for decades. My father returned home saying he forgave his brother and he felt better.
As I reflect on my life's journey, I can't help but recall another moment from my childhood that set me on the path to becoming a lawyer. It was a casual remark made by my mother, overheard in passing: "Your son will be a lawyer for you." Those words struck a chord within me, igniting a sense of purpose that would shape my future.
From that moment on, I knew that the legal profession was where I belonged. While other children dreamed of becoming astronauts or firefighters, I was steadfast in my conviction that law was my calling. It wasn't just a career choice; it was an inherent part of my identity, a path I felt destined to follow.
As I embarked on my journey through law school and into the legal profession, I quickly became disillusioned by the emotionally draining nature of the present legal paradigm, the Adversarial System of Justice. Childhood memories rushed to the surface, memories of a family engaged in a lawsuit because of the present-day adversary system of justice.
Transitioning to my first day in law school, I heard the Dean of my law school class saying, “The Adversarial System of Justice is the Pearl of the Universe.”
Witnessing firsthand how the current legal system fails to deliver justice and leaves both parties' emotionally scarred, I became determined to find a better way. My passion for seeking alternative methods of dispute resolution led me to discover the transformative power of “Mediation”. Unlike traditional litigation, including Mediation, which pits disputant parties as adversaries against each other in a battle for victory, Mediation offers a collaborative approach focused on finding mutually beneficial solutions that are in both parties best interests. The system works pretty well, settling over 50% of disputes, ordered by Public Courts.
I was captivated by the idea that through mediation, parties could achieve win-win outcomes without the need for prolonged courtroom battles. It was a revelation that sparked a newfound sense of purpose within me.
While I personally felt this was a great positive stride for western society, I discovered a much more conducive way to replace the Adversary System. It was when I was enamored with Mediation that I found an innovative solution, Partnering.
To give you a brief history of how Partnering came to be: Throughout the 1970s, construction productivity declined by 17%. 1988 marked a pivotal moment in the construction industry's pursuit of excellence and collaborative innovation. A strategic collaboration brought together federal government representatives, construction companies, and academia to form a dedicated task force (the US Army Corps of Engineers, Associated General Contractors of America, Construction Industry Institute and Texas A&M). They designed a 1-2 day facilitator-led workshop with follow-up sessions. Partnering ensures all stakeholder voices are heard, balances power, builds trust, and creates transparency and shared values. Partnering enhances the quality of construction projects by fostering cooperation, mitigating adversarial challenges, and turning a group into a team.
Construction partnering, with its emphasis on dispute prevention rather than dispute resolution, opened my eyes to a new way of thinking about conflict. Instead of waiting for disputes to arise and then attempting to resolve them, partnering focuses on fostering positive relationships and communication from the outset. Partnering techniques resolve problems and disagreements when they occur instead of allowing them to grow with time into contentious and emotional disputes.
Today, a dozen State Departments of Transportation have adopted partnering, including California, Arizona, Texas, New York, and Maryland. California’s Department of Transportation, known as CalTrans, who is responsible for all roads, bridges, railroads, tunnels, etc, has published data that showcases the results after implementing Partnering on their projects.
The facts are clear for CalTrans: Safety: 71% of projects had zero lost-time accidents Budget: 76% of projects came within or under budget Schedule: 98% of projects delivered on time or early Claims: $60 for every $1 they spent on partnering After partnering 69% reduction in claims between 1988 and 1993 Most projects finished on time or early Millions saved annually
To this day, I remain amazed and astonished that this incredibly effective strategy has never been used outside of construction projects.
To prove my point, I successfully applied these partnering techniques outside of construction to the Hawaii State Bar Association (HSBA) in 2013. The incoming President of HSBA, Craig P. Wagnild, Esq., asked if applying Partnering to his incoming board of directors would make his presidential term more successful. I voluntarily agreed to Partner his board. After his term, he remarked, “Partnering did more than just set the stage for a successful year. It aligned and empowered our board members to take an active role in charting what we wanted to achieve and how we would get there. We left the session feeling that we had truly accomplished something and we were motivated to accomplish our goals.”
This realization marked a turning point in my career. At the age of 82, after heading a successful law firm for 54 years, I have made the decision to pivot towards a new venture: creating my Partnering business which will prevent legal disputes before they arise and thereby ensure long-term team success.
My journey from law to mediation and now to partnering has been a testament to the power and the belief that positive societal change is possible. As I look towards the future, I am filled with hope that society’s approach to problem resolution will continue to positively evolve, guided by the principles of collaboration, empathy, and mutual respect and trust.
About Jerry: Gerald S. (Jerry) Clay is the Founder of Clay Iwamura Pulice & Nervell. Sitting at the 21st floor of the TOPA Tower, he led the firm to become a respected full-service commercial law firm in Hawaii. He was an adjunct professor at University of Hawaii William S. Richardson School of Law and Hawaii Pacific University. He was also the former president of Mediation Center of the Pacific, one of the most reputable mediation centers in the nation.
After 54 years of legal experience, he is the happiest he’s ever been now that he is dedicating his life to a mission he knows will ignite societal change for the better.
1 29 Ohio St. J. on Disp. Resol. 85 (2014)
2 Polkinghorn, Carr, LaChance and LaChance (2006)
3 022 Global Construction Disputes Report (Data from CalTrans)