Why taking the high road to deflate “deflategate” is important

Posted on June 4, 2015 by Michael Zeytoonian

It’s the most talked about dispute in New England and in sports these days. Deflategate. But really, how important is this issue? Whether the league rule was violated and footballs were intentionally deflated to a weight less than the range allowed. On a scale of 1 to 10, 10 being most important, this topic is a 1, if that. Ask anyone who ever played football, at any level.

Fans don’t really care about slight deviations in the inflated weight of the football either. The kinds of deviations in this case don’t matter and have no impact on the playing or the outcome of the game. A violation of the rule calls for a fine of $25,000. This is insignificant stuff.

The closest comparison I can think of is probably that of a hockey player who has an illegal curve on his stick that is beyond the league rules. If a referee finds an illegally curved stick, I believe it’s a two minute or five minute penalty in the penalty box during that same game where the violation occurred. The equivalent in football would probably be a half the distance to the goal line penalty and an automatic first down, and maybe a $10,000 fine?

Nonetheless, this issue is being dwelled on ad nauseum by the sports media, by fans, and even casually interested people when asked about it. Massachusetts Attorney General Maura Healey was about the only person that put it in its right perspective, saying she wished the NFL spent 10% of the time and energy spent on this issue on something important like domestic abuse. Relative to this, a football player who was caught on video sucker punching his fiancé in an elevator –indisputable evidence – was given less of penalty than Tom Brady initially has received for a situation in which no evidence has been presented that links Brady to the alleged violation.  Yet this insignificant matter has taken on a life of its own, leaving all kinds of collateral damage to everyone involved in its wake.

robert-kraftPatriots’ owner Robert Kraft, much to the emotional disappointment of his team’s fans, has been the lone beacon of sanity and courage by deciding to take the high road and not contest this any further. It cost the Patriots $1,000,000 and two draft picks, a penalty everyone acknowledges as being way too much. Yet Kraft chose to put down their weapons and take the first and hardest step toward defusing the already out of control spiral.

The classy response for the NFL would be to also put down its weapons as well, and take the $1,000,000 and give it to some efforts to educate children and prevent domestic violence, child abuse or drug abuse. Commissioner Goodell could still do this, step up above the fray, consider the matter now closed and urge people- media, fans, players and owners alike – to turn their focus to what really matters.

Goodell has a chance to raise it up here. Bob Kraft has opened that door for him by being man enough to stand down. Except for the Brady haters of the world, Tom Brady individually is irrelevant in this. And we don’t need a hearing or appeal to figure this out. Fourteen years of seeing and hearing him carrying himself the way he has is a far more compelling body of evidence of whether he would have intentionally broken a known rule or not. Everyone knows Tom Brady well enough by now to know the truth here. Quarterbacks have preferences when it comes to the firmness of the football and we all know that his preference is a less inflated football. We also know that he always plays within the rules. His role in this is irrelevant because he is a member of the team, as are the two equipment guys. The team has been held responsible and the team has relented without a fight. End of an already too long story.

The NFL commissioner now has a choice to make, and he really only has one good choice. He can take the high road that Kraft has already taken, benevolently decide that the matter is now fully resolved without an appeal process and put the matter to rest and behind us all. Or he can worry about his image, his ego and “winning”, take the low road and prolong this lunacy out even further, creating more collateral damage for everyone involved in its wake. Prolonging things will further negatively impact the league, the union, Brady, the Patriots, the opening night, the raising the banner celebration (which most likely either won’t happen or will be very ugly if Brady is suspended) and yes, even Indianapolis Colts who started this whole thing. But ironically, most of all it will negatively impact the Commissioner himself, because keeping this issue alive and having to make any decision either way is already a lose-lose for Goodell, one that he will not be able to recover from.

It’s hard to take the high road, especially in a testosterone-jammed stage like the NFL and sports media. But in the long run, it’s always the better choice.

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Zeytoonian Moderates MCLC Panel on Homeowner-Contractor Disputes

Posted on April 29, 2015 by adminDRC

Using Collaborative Law to resolve multi-party homeowner-contractor disputes was the focus of a special program at the Massachusetts Collaborative Law Council’s (MCLC) annual meeting on March 12, 2015 at the Wellesley Community Center in Wellesley, MA.

A team of ten Collaborative Law professionals and attorneys presented a case scenario in which the parties to a homeowner–contractor-subcontractor dispute opted to use Collaborative Law to work through a structured negotiation of options for resolution.  Participants included Collaborative lawyers Dan Finn, Maura Sullivan, Jeffrey Fink, Susan Klebanoff, William Coyle and Larry Balin, together with Collaborative professionals Linda Cohan, Scott Loring and David Goodman.

Collaborative lawyer and mediator Michael Zeytoonian moderated the presentation, providing insights as to the use of Collaborative Law and the techniques used by the lawyers throughout the presentation.  An energetic question and answer period concluded the program.

The MCLC is a non-profit organization consisting of lawyers, financial advisors, mental health professionals and coaches dedicated to the promotion of Collaborative Law in Massachusetts and to educating and training lawyers and other professionals in Collaborative Law.   Collaborative Law is used nationally and internationally in over 20 countries to resolve disputes in the practice areas of family, business, employment, contract and probate law.

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Courts are limited when it comes to problem solving

Posted on April 2, 2015 by Michael Zeytoonian

Recently I represented a party in a dispute over some business equipment.  This case would have been better resolved by the parties either directly communicating with each other or communicating and negotiating with each other through their lawyers.  But before that could be done, one party opted to file a complaint in federal court and […]

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Courts are limited when it comes to problem solving

Posted on April 2, 2015 by Michael Zeytoonian

Recently I represented a party in a dispute over some business equipment.  This case would have been better resolved by the parties either directly communicating with each other or communicating and negotiating with each other through their lawyers.  But before that could be done, one party opted to file a complaint in federal court and as a result, we were engaged in court proceedings.

Fortunately, a preliminary motion allowed us to get before the court and the judge before the complaint was even answered.  After the first court appearance and oral arguments on the motion, a status conference was scheduled a month later to check progress.

I saw this as a good opportunity to work with opposing counsel and the assigned judge to address some of the underlying factors and straighten things out in a fair and appropriate way that could satisfy the interests of both sides.  Unfortunately, as I found out at the subsequent status conference, the judge did not see things the same way.  He clearly saw this matter through a very narrow lens, that of what had been presented to him in the complaint and the immediate subject matter of the motions filed.  He advised the parties that the court was not a vehicle for equitable problem solving and that if my clients wanted to expand the court’s involvement, we needed to file another action or bring a counterclaim.  The court’s concern was only what was before it, which was returning certain properties to their owner, in this case the plaintiff.  It was not the court’s concern that the rest of the problem, how things worked in this industry and certain other properties also being returned to their rightful owner, the defendant, would not be addressed by the court.

In my response to the Judge’s inquiry, I requested that the court take a broader view of the full context of the circumstances.  But based on the judge’s stern admonition, I quickly understood that the court was not interested in discussions about equitable and appropriate solutions or judicial economy.  Recalling what an early mentor had taught me about knowing when to stop talking in a court proceeding, I held back on my argument.

At first I was upset, recognizing that resulting court-based conclusion of this matter was one that would satisfy the plaintiff’s interests but while leave my client disenfranchised.  The solution the court would give us was incomplete and there was a certain amount of inequity and unfairness to it.  But then I realized that while the judge may have had the discretion to expand the court’s role, his decision not to do so was a correct one, as a matter of law and jurisdiction.  As he pointed out, it was not the federal court’s job to be a problem solver helping the parties work out their issues and smooth out their business relationship.  The court’s job was limited to applying the law to the undisputed facts in front of it and make a ruling.  This is something that lawyers grasp, but that leaves most non-lawyers and clients scratching their heads in wonder.

Sometimes, the law and the court rules limit the court’s ability to reach a conclusion that achieves full justice and fairness.  As counterintuitive as it may sound for lay people, the rulings of the courts do not always give people the most complete and appropriate resolution.  To get these things, sometimes people have to go elsewhere, and utilize processes that are still rooted in the law and true to the spirit of the law, but neither limited by the letter of the law nor shackled by civil procedures.

This is where processes like Mediation, Collaborative Law, early Case Evaluation and Conciliation, offered by private providers outside of the litigation process and court system, can play an important role in better satisfying all the interests of all the parties.  These approaches are not limited by the limitations on the court’s authority.  The only limitations on these processes are those of the parties involved, their ability to work collaboratively and think creatively to come up with more complete solutions to their disputes.  If the parties, assisted by lawyers trained in these processes and neutral facilitators, can work together and use these processes, they can achieve things that most courts cannot provide, and tailor resolutions according to their circumstances and needs.

Sometimes, courts teach us more by what they don’t do than by what they can do.

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Is this the best dispute resolution we can do?

Posted on March 31, 2015 by Michael Zeytoonian

A few weeks ago, there was a picture in Time magazine’s “LightBox” section (2/16/2015 issue), depicting the city of Kobani, Syria, days after Kurdish forces had recaptured the city from ISIS. In the picture were the remains of dozens of bombed out buildings in ruin, as far as the lens could reach. There were only two people in the picture, a man walking down a deserted street filled with rubble from the destroyed buildings, and another man in uniform with rifles strapped around him, standing on top of what was left of a rooftop.

I suppose somewhere, some group celebrated the “win” of recapturing this city as a strategic victory. The problem was that there was nothing left to recapture. Whatever had once been there was gone. The people were either dead, injured or gone. There was no other movement.

Recently, I read an article in the Christian Science Monitor (3/2/2015 issue) about the Texas federal court blocking President Obama’s executive action immigration initiative. The initiative, which was announced in November, 2014, could affect the lives and status of 4.3 million people. Texas was joined by 25 other states in this effort to block the program from being implemented. Republicans consider the unilateral executive action to be unconstitutional and illegal. The White House has pledged to appeal District Court Judge Andrew Hanen’s injunction.

Neither side has celebrated a win on this matter yet, but one group that has no reason to celebrate is the group of 4.3 million people whose status is in abeyance.

Obama_PentagonThe article didn’t mention it, but I was wondering about the cost of the legal fees in this matter and who is paying for them. I suppose that these 25 states as well as the White House have hired lots of attorneys, and/or are taking up hundreds of hours of time of any state or federal lawyers that are working on this matter. I’m guessing there are some pretty high priced law firms that the state and federal governments are paying to work on this matter. With an appeal coming, these fees are probably in the 6 and maybe 7 figure range, I would think. I don’t recall any government officials asking its taxpayers if they are OK with shelling out these fees from their state and federal tax dollars, or from budgets that are already depleted.

As a mediator and dispute resolution advocate, I can’t help but ask: Is this the best we can do in our efforts to resolve disputes and conflict? Or simply put, is this the best dispute resolution?

Totally destroy cities for years and displace thousands, maybe millions of people? Talk about millions of people’s lives, properties, hopes and dreams as the “collateral damage” necessary to “take back” now demolished land?

Pay lifetime politicians large amounts of money, and incredible perks, like lifetime health insurance, etc. to do a job that they have not done – represent people’s interests and resolve disputes? We pay them to be in office far, far too long (not to mention the ridiculous amounts of moneys spent on all their campaigns), only to have them be so partisan, ineffective, unproductive and gridlocked that we then have to pay more lawyers and tie up the courts to help them sort out how to basically do their jobs? How can we respect a President and a Congress that have both failed so badly at working together that they have essentially violated the people’s trust they are required to honor by their oaths and actions?

We have to do better than this in resolving disputes. A few years ago at an international gathering of collaborative lawyers who are dedicated to resolving conflicts without litigation, the keynote speaker reminded us: We are the successful result of 40 billion years of evolution. Let’s act like it!

The correction has already begun. It started small, like most movements, on the most basic of levels, with one lawyer in Minnesota deciding to do things differently because the present methods of resolving disputes clearly weren’t working. It’s growing slowly but steadily here and there (in 21 countries and by thousands of lawyers), with much resistance from a litigious minded American society and lawyers who resist a necessary shift and adjustment. It’s not clear when it will reach a tipping point and turn the tide of how we resolve disputes, but common sense dictates that it is only a matter of time.

But until we do this better, we will continue to see lifeless pictures of mass destruction and hear about legions of lawyers hired to sue somebody, for any kind of reason, including by governments that cannot accomplish anything, primarily because people are more intent on winning legal and political battles than sitting down and working together to solve problems.

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Is this the best dispute resolution we can do?

Posted on March 26, 2015 by Michael Zeytoonian

A few weeks ago, there was a picture in Time magazine’s “LightBox” section (2/16/2015 issue), depicting the city of Kobani, Syria, days after Kurdish forces had recaptured the city from ISIS. In the picture were the remains of dozens of bombed out buildings in ruin, as far as the lens could reach. There were only […]

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Situational law: Lessons from Super Bowl XVIX

Posted on February 16, 2015 by Michael Zeytoonian

What do you want your lawyer to be? Hired gun? Technician? Negotiator? Legal Counselor?
What determines which lawyer you should hire?

Often a person hires a lawyer before thinking about exactly what he needs the lawyer to do. You want the lawyer to “represent” you. But what does that mean? In different situations, lawyer are called on to do different things. Many times, people hire the wrong kind of lawyer for the situation. The 2015 Super Bowl and its classic finish gave us key insight on how to choose your lawyer.

New England Patriots coach Bill Belichick often talks about “situational” football. Most fans overlook this, instead focusing on who is the best this or the strongest that, and who will outplay whom. But situational awareness is a critical component to a team’s preparedness. Great coaches prepare players for whatever situation arises, teach them how to recognize it and to know what to do when they see it on the field.

Tom Brady is one of the greatest quarterbacks to ever play football. He doesn’t have the strongest arm, isn’t very fast or agile and has never been a scrambling runner for yardage. As the football world knows all too well, he was drafted in the sixth round, the 199th player chosen that year. Six quarterbacks were picked before Brady. But what makes Brady so valuable is that he immediately recognizes a situation when he sees it and knows exactly how to respond to it.

This 2015 Super Bowl was a classic example of the victory of situational knowledge. A coach recognizes that the other team is banking on him calling a time out so he chooses not to call one, throwing the other side into confusion and time pressure. He calls a defensive formation that will result in the other team opting for the offensive play that results in a turnover. A rookie sees a formation, reads his opponent’s eyes, and knows from weeks of preparation what the play is going to be and responds to it perfectly.

It wasn’t the strongest running back, the most mobile quarterback, the most gifted defensive back, or the stoutest defense that that determined the outcome of the game. It was recognizing the situation, being prepared for it and knowing exactly what to do. Situational football gave the New England Patriots the championship and the Seattle Seahawks a few months after the fact to ponder the couldas, shouldas and wouldas.

Situational. Life is like that. The most successful people are usually not the smartest, the strongest, the most persistent, or the ones with the most resources at their fingertips. Those who succeed recognize a situation for what it is, have prepared for it, know what to do and do it.

The legal profession is also situational. Some situations call for litigators and litigation. Some require contracts lawyers or transactional lawyers. There are circumstances that require skilled negotiators. There are aspects of law that call for lawyers to be experts in a particular code or set of regulations. Sometimes what a client needs most is some wise, well-grounded legal counsel.

But too often, people don’t choose their lawyers to fit their situation. They usually go on a recommendation from a friend or relative. Without enough situational thought, they hire a transactional lawyer to handle a situation that involves violations of laws. Or they hire a litigator when they need a good contract lawyer, or a divorce lawyer for an employment dispute. They retain a scorched earth hired gun when they need a tactful negotiator.

Choosing a good lawyer is not about getting the “best in the business”, or “the toughest son of a gun out there”, or an intellectual from a top law school, or a big, downtown firm. Picking the right lawyer happens because a person understands the situation and finds the lawyer that recognizes it and knows what will work best in that situation.

The best negotiator or mediator in the business won’t help if you if what you need in the situation is someone who knows what motion to file in what court, how to file it and what to state in it. The top intellectual lawyer in the state may be of little value when the lawyer you need for your building project is one who knows how a certain town’s officials operate, who in that town makes the decisions and what zoning law to rely on. The expert on how to use Collaborative Law’s procedures in a dispute won’t be of any value if she didn’t have the presence of mind to see that the situation needed a preliminary step or two before the door to using Collaborative Law was opened.

Situational law. If you are about to choose a lawyer, don’t overlook it. Or you will soon learn what it feels like to be “sleepless in Seattle.”

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Why Our Practice Areas Include Special Education Cases

Posted on January 21, 2015 by Michael Zeytoonian

There is a personal reason and a law practice philosophy reason why we represent clients – parents and families of special education children – in disputes involving special education matters and include this area of practice in our services.

The personal reason is that I’ve gotten to know some of these people and the challenges they face when they are trying to do all they can to provide the best education, therapy and otherwise for their children with special needs. Often these are children on the autism spectrum, or kids with ADHD or other mental health related diagnoses. Their families face many challenges of all kinds – logistical, scheduling, financial, and sometimes drained energies and resources. First hand, I’ve seen those children who work with my wife, Lisa, a therapeutic riding instructor at the BINA Farm Center. I’ve seen these kids make amazing progress working with instructors and horses, and their faces and energies light up through this kind of therapy, and the changes in their beings.

It is agonizing for parents and for all involved, when a child is not in the right educational placement or getting the right types and amounts of services. I have seen and heard of how a child’s progress is heightened when he or she gets into the right educational placement with the right level of services. It’s amazing and gratifying, and more than enough reason to want to help them and their families as their legal counsel in special education cases. It’s rewarding to work as part of an administrative law process with school districts and parents to achieve a result that is good for everyone involved.

The law–related/philosophical reason I like working on these cases is because the system of dispute resolution employed by the overseeing agency – the Board of Special Education Appeals or “BSEA” – is designed the right way. It is designed to foster negotiations first, on many levels, between parents and school districts and to achieve a good result. Only when all the “alternative dispute resolution” or “ADR” processes used do not reach a successful resolution, then and only then do the parties go to a formal hearing. Early mediation is built into the process. Several opportunities to negotiate and collaborate are built into the process, including a “settlement conference”. All of these tools can be very effective in coming to a good resolution. The BSEA statistics show that very few of the disputes end up going to a hearing.

The system is designed to resolve through negotiation first, and then, only if needed, do the parties resort to “litigation” in the form of a hearing. There are provisions for any important and relevant information to be shared and it is very streamlined, not requiring the excessive and burdensome discovery process that is a large part of litigation’s time and costs. There are no juries. The mediators, the settlement conference facilitator and the hearing officers are all neutral and well versed in this area of law.

Earlier above I referred to working “with” school districts, because a successful result requires school districts and parents, represented by lawyers and/or advocates, to work together to achieve it. While there are disputes, and parties disagree, there are important and ongoing relationships here between parents, students, teachers and school districts that need to be maintained and when possible, to stay healthy. So jumping right into adversarial and positional litigation and filing a complaint and initiating a lawsuit in the courts would not serve some basic needs in these cases, one being the need to maintain relationships. The BSEA’s administrative approach to resolving disputes is completely consistent with Dispute Resolution Counsel’s approach and philosophy as to how to resolve disputes effectively. They are both based on using a process designed to serve the situation presented and for achieving a good resolution, rather than an adversarial system which damages relationships and can only result in a win-lose (or lose-lose) outcome.

So knowing that these kids and their families are being well served by the work the lawyers, advocates, school districts, teachers, mental health professionals, mediators and hearing officers do on these disputes – as well as by the process that serves them – is satisfying. Helping them to reach a good resolution of their dispute so they can get back to the important work of raising, educating, serving, molding, and taking care of the needs of these children is a worthy place to apply our legal skills and talents.

That’s why we include representing parents and children with special education issues and disputes in the services Dispute Resolution Counsel provides for our clients. It’s an important field of work with deserving families and educators being served by both the legal and educational communities, and an effective and efficient way to work together to do some real problem solving.

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Dispute Resolution Starts With The Sacredness Within Each Of Us

Posted on December 29, 2014 by Michael Zeytoonian

Recently I was in a group discussion triggered by a book called Start with Why, by Simon Sinek. Each of us offered responses to the question of why we do the work we do. With each response, we peeled away another layer of the onion, like a small child responds to every answer you give him or her with another “But why?” Here’s my initial response to why:

I have shifted my practice from litigation to non-adversarial dispute resolution because I believe this approach is more efficient and serves my clients’ needs better. I’ve also changed how I practice law internally because I believe in non-adversarial dispute resolution and it is more aligned with who I am.

I kept peeling away layers of whys. Why is that important to me? What purpose does this serve? Eventually, the why inquiry took me to something more spiritual and a core element in my belief system. Whether one is a Christian, a Muslim or a Jew, and with all due respect to those who are agnostics or atheists, one core belief I think we share is that every one of us is sacred. There is some divinity within each of us, whether we recognize and acknowledge it or not. Buddhists often greet people with the expression “Namaste”, an affirmation that “I honor or recognize the divinity within you.” While we may believe this, our actions don’t often reflect that belief.

I’ve stayed focused on this “why” lately, coupled with the notion that each of us is sacred. How does this element of sacredness plays itself in our lives? Would we present ourselves to others and take care of ourselves differently if we were led by the thought that we are sacred? How would that core value impact how we interact with and treat others? How does this factor into my chosen field of dispute resolution? How might we negotiate differently if we built our efforts on an underlying premise that each of us is sacred? We have evolved from trials by fire or water to decision-making by battle, to trials by a judge or jury of our peers. These are more civilized, but still are adversarial processes.

Former U.S. Supreme Court Chief Justice Warren Burger said in 1984 that “trials by the adversary contest must in time go the way of the ancient trial by battle and blood.” He continued, noting that the adversarial system “is too costly, too painful, too destructive, and too inefficient for a truly civilized people.”

To hold ourselves up as sacred goes even beyond being civilized. When we respond or act a certain way toward another, we are acting that same way toward the source of our divinity. If I am sacred, then in all I do, I should try to reflect that sacredness and offer only my very best. If those I interact with are sacred, then I should see them and act toward them in that same light. While I might disagree with you, I do so respectfully, and working together, we can seek out solutions through processes that do not ignore our respective needs or our dignity.

People who practice Collaborative Law talk about the impact of the “paradigm shift” that occurs when we change our approach from litigation to Collaborative Law. Imagine the impact that comes from making the internal paradigm shift of treating ourselves and all others as if we are each sacred. This shift requires that we always come with our very best effort, that we are guided by the values of respect, honesty and trust, that our actions and words reflect those values, and we seek out the very best resolution possible, not a compromise that requires everyone to give something up, and certainly not a win-lose scenario. If each of us is sacred, then our efforts can and need to reflect that level of consciousness. George Pör, an international leader who created the “World Cafes” concept, was a keynote speaker at a law conference a couple of years ago. One of his comments was a jarring and inspiring thought: “Each of us is the successful result of 30 billion years of evolution: Act like it!”

What if we live and work as if we are sacred and treated every person and everything in our world as being sacred? For a new year’s resolution, let’s try it for as long as we can, in our families, communities and our professional lives. And if we fail at it, let us get up and try again, and again, and again, until we have internalized it. I don’t think I am alone in this belief in the sacredness that resides and breathes within us. Let me ask you: “Living sacred: Are you in or are you out?

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Ferguson: Are we asking the wrong questions?

Posted on December 22, 2014 by Michael Zeytoonian

Long before a Missouri grand jury deliberated on whether to indict a policeman when a young man was shot and killed, there was already a problem in Ferguson, by all accounts. Michael Brown’s tragic death, whether justified or not, didn’t cause the problem; it just triggered the symptom.

For those who practice law and understand the grand jury process, the decision not to indict was not a surprise; a determination to indict would not have been a surprise either. But neither a finding of probable cause nor lack of probable cause was going to solve the problem. If the matter had gone on to trial, the outcome would have resulted in a similarly polarized and divisive result. Remember the OJ verdict? Either way, some people would have felt that justice was not served, that a young man’s death could have been avoided and should be accounted for, or that a police officer’s career has been abruptly cut short, and his life as he knew it before the shooting has been forever changed. Either way, a young life has tragically ended. Neither his family nor the life of the man who pulled the trigger and that of his family will ever be the same.

At the end of the day, what does an indictment or no indictment, or a verdict – one way or the other – do for everyone involved? For some, it may bring a certain level of satisfaction, but one that is short lived. For others, it leaves an immense sadness and disappointment, and a sense of injustice. But what does any of that do for the future Michael Browns who will be in the wrong place at the wrong time? Or the future police officers faced with a hard choice of potential life or death? And beyond them, how does it help their families, their friends, and all those stakeholders not only in the communities of Ferguson and New York City and other sites of shootings or tragic deaths to come?

Not much. That is the deeper tragedy. Zero sum games like indictments and verdicts never give everyone involved what they really need. It’s already too late. And even for the side that “wins”, it’s usually a hollow, Pyrrhic victory, not full resolution. No matter what, someone loses. Protests will follow. People will become polarized because they are being forced into picking a side. Did the OJ Simpson acquittal really do anyone any good? If he had been found guilty, would it have been any more of a productive result? How about the result in the Zimmerman case in Florida? Did it make a productive difference? Do communities have any better guidance in when to use and not use deadly force? Or when it is OK to act in self-defense and how to do so?

These are empty end-game results, largely unproductive because they only react to a symptom and don’t get to the hard work of a cure. Ferguson still has a problem with relations between its citizens and its police. Policemen still feel their hands are somewhat tied every time they are faced with a dangerous life and death situation that involves a black man. Young black don’t feel the same sense of security a white man may (or may not) feel in knowing that there are policemen around protecting communities which include them.

There are many great policemen out there trying their best to protect every person and make good decisions every day. There are a lot of good black men out there that are innocent and haven’t ever thought about committing a crime. But there are also some bad policemen, and there are good policemen that sometimes make bad decisions. And there are black men and white men out there that do intend to do harm to people and property, break laws and disrupt and dishonor society. Do we decide whether or not to give someone a pass or not based on his color?

As for us, there are some of us that just cannot get beyond seeing society in a divided, polarized us vs. them way – black vs. whites, legal citizens vs. illegal aliens, “Americans” (whatever that means) vs. immigrants, liberals vs. conservatives, gays vs. straights, wealthy vs. poor, Democrats vs. Republicans, haves vs. disenfranchised. As long as we allow ourselves to view ourselves this way and come up with no better way of solving our problems than going to court and getting a winner-loser decision, we limit ourselves to reacting to symptoms, not solving problems.

The question to ask is not whether a police officer was guilty of using unjustified deadly force. The question we need to be asking is what leads to that situation, what creates that conflict, what is the root of that lack of trust and can we replace all the false assumptions in our heads with validated facts. The inquiry is not whether or not the policeman made the right decision, but why were that police officer and Michael Brown put into a situation where a policeman had to decide to shoot or not? Why and how did we get to that point?

To answer these questions, we need more than a grand jury or a trial. We need to be able to sit down together – potential victims, potential perpetrators, the community they both live it, and every single stakeholder – and first understand that we are all connected. This is our problem to solve, before it ever reaches the point of the need for an officer to pull out a gun. If that police officer had had the chance to know Michael Brown, and Michael Brown’s parents had made the effort to know the police officers, and there was a relationship and a level of trust established, that confrontation may never have happened.

What might help us answer the right questions, though, would be some form of community building, the use of restorative justice, and the practice of the ancient American Indian Circle Process, gathering everyone involved into the circle with the intended goal of solving the larger problem. That conversation, using a talking piece, gathering every stakeholder in the matter and giving them a forum in which to be heard and to listen to each other, is where the process of real resolution can begin. Not with a grand jury; not with a judge or a jury, and not in the acquittal or guilty verdict that would follow.

Maybe, if we can get people into the Circle first, rather than only giving them the option of having to angrily turn to the streets later, something really good and lasting might come of it. If not, there will continue to be more Michael Browns and more Fergusons, eventually leading to an end game in which we all lose.

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