From Labor Law and the Federal Bench to Consensus-Based Resolution: A Spotlight Q&A With William E. Smith

Hon. William E. Smith (Ret.) reflects on how his labor and employment practice and 23 years on the federal bench shaped his approach to ADR, why active listening matters and how persistence can help parties find practical solutions.      

1. Please provide a brief overview of your legal career prior to joining JAMS, including how your years in labor and employment practice and on the federal bench shaped the way you approach disputes today.

I began my legal career as a labor and employment lawyer at what was then Rhode Island’s oldest and largest law firm, Edwards & Angell. There I represented all sorts of businesses, large and small, as well as various public sector clients such as the State of Rhode Island, cities and towns, public officials and authorities, and the state courts. I negotiated labor contracts, tried arbitration cases, led administrative hearings and handled cases in the state courts, including appellate work before the Rhode Island Supreme Court. From 1999 to 2000, I took a year off from my law practice to run the office of a U.S. senator. I went back to Edwards & Angell in 2001, and in 2002, was nominated and confirmed for the district court, where I served for 23 years.

Interestingly, I found that my background as a labor and employment lawyer, where the focus of my work was largely on problem-solving rather than an adversarial process, was enormously helpful to my work as a judge. Judges have to resolve difficult issues all day long. My instinct was to seek consensus at every opportunity and work collaboratively with the lawyers to find solutions and move cases forward. Whenever possible, I guided cases to a mediated resolution instead of trial.

2. How would you describe your ADR style, particularly when helping parties in emotionally charged or high-stakes matters stay focused on practical resolution?

In my view, an effective mediator has to bring many different skills to the process. I’ll mention four that I think about a lot:

• Listening: I am a real believer in active listening. I need to know not just what a party’s position is, but what is behind it. Sometimes it takes all day to figure that out. Active listening is the key.
• Offering guidance: I like to be a resource for the parties as they formulate their offers. I try to help them understand how their offer will be seen by the other side. Is it insulting? Is it too much, too soon? Who is the real decision-maker on the other side? Sometimes it means getting parties to see past the image of their opponent that they have formed over a period of months or years.
• Reality-checking: I try to bring a reality check to the parties’ positions by evaluating the risks and costs of going forward with litigation. Having tried so many cases, I know how juries and judges react to cases. That perspective can really help clients see the situation more clearly.
• Maintaining momentum: I think one of my most important roles is to find a way to keep the process moving, even when it seems hopeless. If we can keep going, we can usually find a solution.

3. Given the breadth of your experience across complex civil disputes, are there particular types of matters—whether involving workplace issues, public institutions, technical subject matter or high-stakes business concerns—that you find especially meaningful to work on as a neutral, and why?

Honestly, I find every case interesting. Sometimes cases are challenging because the amount of money involved is huge; sometimes the money is small, but the emotions are intense and raw; sometimes the issues are very complex, either factually or legally. And, of course, sometimes all of these are in play. Because I like challenges, every case captures my interest.

4. Many of the matters you handle involve technical, economic, regulatory or scientific complexity. How do you help parties simplify the issues and move toward business-oriented or practical solutions?

Parties need a couple of things from a mediator in a highly complex case. First, they need someone who can take in all the information and give them an honest assessment of the competing positions so they can use that to evaluate their risk. This might include, for example, input on how Daubert motions and summary judgment motions may be resolved. Second, they need to understand how a judge and jury will react to the evidence and the law. Will they understand it? Do the parties’ experts have the ability to explain complicated topics in an understandable way? Does the judge have the resources to sort the issues out? And finally, given the various possible outcomes of a trial, what does the world look like if they take that path? Getting a perspective on these issues can lead to more practical conversations about finding solutions that avoid the zero-sum roll of the dice that comes at trial.

5. Civil rights, government, higher education and employment disputes can involve deeply personal experiences, institutional pressures and public scrutiny. How do you foster trust and credibility with all parties involved?

I have a body of work involving these types of cases spanning more than 23 years on the bench. Those written opinions and my trial work provide a good window into how I approach these issues and demonstrate my evenhandedness. Before I became a judge, I was the city solicitor for the second-largest city in Rhode Island. In that role, I not only did I deal with litigation, but I was also very involved in policymaking and risk-mitigation strategies. Together, that background and my experience mediating these types of cases help me build the trust that leads to resolution, especially when emotions are running high or there are concerns about how the public will react to a settlement.

6. What are some of the highlights of your career to date, whether in litigation, public service, teaching or alternative dispute resolution, and what professional accomplishment are you most proud of?

It was an enormous honor to be a federal judge for so many years. I was able to do so much, not only as a trial judge, but also by sitting frequently on the courts of appeals. Serving as a chief judge and working on judicial conference committees gave me a national perspective and role. I also love teaching and legal education, and was able to combine my two interests through my judicial education work with the Federal Judicial Center. 

I am most proud of having changed some people’s lives for the better: defendants I gave a second chance to, law clerks and interns who worked in my chambers, students I taught and mentored over the years and new judges I mentored as they came onto the bench. When I was chief judge, I used to tell the court staff that we should operate by Smokey Bear rules: Leave things a little better than you found them. I think I did that in my career as an attorney and judge, and I will hopefully continue to do so here at JAMS.

7. Who influenced your legal career or had an impact on the direction you’ve taken, and is there an important lesson from a mentor that still guides your work as a neutral?

My most important mentor was my father, who was a trial judge in Idaho. He was a part of the Greatest Generation and was pretty no-nonsense. He cared deeply about his work and about people. It was from him that I developed my love for the law and got an early window into what it would be like to be a judge and how one can use that position to help people. There were also others who greatly influenced me. Sen. Frank Church, whom I worked for in the 1970s, was a titan of the U.S. Senate. And early in my career, two labor lawyers at Edwards & Angell mentored me. One thing they all had in common was that, despite their successes, they did not take themselves too seriously. My dad loved this couplet from the poet Rudyard Kipling: “If you can talk with crowds and keep your virtue, Or walk with Kings—nor lose the common touch.” Those are good sentiments to live by.

8. What do you enjoy most about helping parties resolve complex disputes outside the courtroom?

When parties come to mediation, they have usually reached the point where they know at some level that a settlement is probably better than a trial. But getting from that abstract belief to a concrete solution can be so difficult. I find it really satisfying to help everyone get to where they want and need to go. It’s kind of like being the guide who brings people lost in the wilderness to safety. Once in a while, a party will say, “We couldn’t have done it without you.” That feels great.