IN THE NAVAJO NATION DISTRICT COURT

JUDICIAL DISTRICT OF CROWNPOINT, NAVAJO NATION (NEW MEXICO)

JERRY A. BEGAY, Personal Representative, Plaintiff, No. CP-CV-129-97

-vs-

BENSON SILVERSMITH, Defendant.

OPINION AND ORDER

It appears from the pleadings that on December 8, 1995, a little after 6:00 p.m., Hannah Akee, a Navajo, was walking on the shoulder of United States Highway 666. She was walking by the southbound lane, northwest of the Twin Lakes Chapter House. That is within the reservation portion of the Navajo Nation. As Mrs. Akee was walking along the highway, a vehicle driven by the defendant struck her, and she died after the incident. The plaintiff is Mrs. Akee’s surviving husband and personal representative. He is from Sheep Springs, Navajo Nation, which is north of the Twin Lakes Chapter House. Mr. Begay filed this action in September of 1997. The defendant filed a motion to transfer this matter to peacemaking on May 27, 1999. The plaintiff resists the motion and alternatively asks that if the court does refer this case to peacemaking, it should impose certain conditions or limitations on the proceedings.

Given controversy among the personal injury bar regarding peacemaking, and accusations that peacemaking is being used by insurance companies to deny Navajo plaintiffs fair compensation in personal injury cases, the court finds it prudent to render an opinion which discusses the issues at length.

DISCUSSION

The Navajo Nation judiciary revived the traditional Navajo justice procedure, hozhooji naat’aanii or "peacemaking," in April of 1982 when it adopted the Rules of the Navajo Peacemaker Court. More recently, there have been at least two products liability cases, one in the Chinle District Court and one in this court, where corporate defendants have sought and obtained an order to submit the case to peacemaking. Both actions were settled. This is at least the third case where a defendant has sought peacemaking on a personal injury claim. The distinguishing feature about this case is that both the plaintiff and the defendant are Navajo.

The plaintiff objects to submission of this case to peacemaking under the Rules, saying that this is not a "minor dispute" which is eligible for peacemaking; the defendant is not entitled to request peacemaking; the motion requesting peacemaking is dilatory and the defendant has waived any right to ask for peacemaking; and, there is no good cause for a referral into peacemaking. The plaintiff’s counsel also say the plaintiff may be pressured into peacemaking.

The plaintiff also points to hard feelings caused by the assumption of a few individuals (who are not parties to this action) that Mrs. Akee was intoxicated at the time of the incident. The plaintiff’s counsel asserts that he obtained a toxicology report which states that she was not intoxicated at the time.

The court will address (1) its authority to order peacemaking in any case, (2) the interests of the parties which are relevant to the motion, (3) the factors the court will use to exercise its discretion for or against a referral, and (4) the limitations or conditions the plaintiff suggests.

One of the fundamental inherent powers of a trial court is the power to regulate the proceedings before it. Pino v. Bedonie, N.L.R. Supp. 308, 309 (Nav. Sup. Ct. 1992). See also, Parents of Two Minors v. Briston Div. Juv. Ct., 494 N.E.2d 1306, 1311 (Mass. 1986) (inherent powers are essential to the capacity to decide cases and the ability to function as a court); State v. Mains, 669 P.2d 1112, 1122 (Or. 1983) (inherent authority to control the trial of a case); and Bi-Rite Package, Inc. v. Ninth Judicial District Court, 735 P.2d 709, 714 (Wyo. 1987) (there is inherent power to control proceedings because it is necessary to the efficient functioning and prompt and just disposition of litigation and business of the court). The Navajo Peacemaker Court Rules were adopted in 1982 to begin the process of revitalizing traditional Navajo procedures. They are limited, so this court looks to its inherent power to utilize peacemaking to resolve disputes as the law to be applied to this case..

It is important to identify the interests in the disposition of the motion before the court. First, there are the interests of the two primary parties, who are Navajo. The plaintiff is a Navajo from Sheep Springs who lost his wife in the incident, and the defendant is said to be from Tohatchi, which is north of Twin Lakes and south of Sheep Springs. The two parties may or may not be in a continuing relationship, but the communities along U.S. Route 666 between Gallup and Shiprock are small, and people who live along the route do have occasion to interact. The feelings of the parties are important. Here we have a man who has lost his spouse. The plaintiff identifies two sisters who wish to clear the decedent’s name. We may also have a defendant who suffers trauma because of his involvement in a death. These are precisely the kinds of issues peacemaking addresses. Courts are quite efficient in deciding things such as who did it and how much money is owed. They are less efficient in dealing with hurt and loss on a personal level, and the adjustment of relationships when there has been a tragedy such as the one in this case. In peacemaking, the peacemaker liaison or peacemaker can summon the police officers and emergency medical technicians if anyone wants to discuss the drinking issue. The primary participants are Navajos, and that is important to the issue of the exercise of discretion in favor of peacemaking.

Another important factor in the exercise of discretion is whether this kind of case would have been handled in peacemaking in traditional times. Here we have an accident, and peacemaking has dealt with deaths by accident for hundreds if not thousands of years. Navajo tradition has many stories of deaths and how they were addressed traditionally. Although this is a modern automobile death case, death during travel is something familiar to the Navajo culture.

While the plaintiff’s counsel makes many assertions about the possibility of some kind of manipulation of the process, the court cannot recognize something that may or may not take place in the future. In addition, the court can and will reserve the right to review the proceedings to determine if there was fraud, coercion, or some other unconscionable practice which would void and agreement or make it unequitable. The standard law dictionary defines "unconscionable conduct" as "Conduct that is monstrously harsh and shocking to the conscience." Black’s Law Dictionary 1694 (Rev. 4^th Ed. 1968). "Conscience" is a central element of Navajo common law. It is also related to the duty of the court to render substantial justice. That too can be done in the review process.

The court chooses, considering the parties, the nature of the dispute and its relation to similar disputes in traditional times, the lack of any indication the process will be abused, and the authority of the court to review any decision made in peacemaking, to exercise its discretion in favor of granting the motion for peacemaking.

The plaintiff’s attorney says that the plaintiff does not consent to peacemaking. While the consent issue is important, it is more important to reaching a decision or not on what to do about the consequences which prompted this law suit. In traditional times, a clan leader or naat’aanii would have an assistant call people into talk about important things, including disputes which arise within the community or inter-community conflicts. People came to talk or sent representatives, out of respect for the naat’aanii. That tells this court that it can ask people to at least try to talk out the problem with others. Consent comes into play when it comes to making a decision about what to do about the event which caused the dispute.

There are two schools of thought about the end product of mediation. One holds that if the parties are satisfied with their agreement, that is sufficient. The other maintains that the final decision should be approximately the same that a court would award. See, Nolan-Haley, "Court Mediation and the Search for Justice Through Law," 74 Wash. L.Q. 47 (1996) (Ms. Nolan believes that mediation decisions should be driven by principles of law). This court takes another position. When it comes to a sum of money, the amount decided in peacemaking should reflect the feelings and values of the parties and take into account their economic needs, along with their emotional needs and their desire to achieve k’e. There are actually two monetary sums which are important: Those which are satisfactory to the parties, and those the court should consider when assessing the reasonableness of a final judgment. Therefore, there can be two considerations, the value put on the case by the parties, and the reasonable value of the case as a matter of law. That means that the court need not be limited to a monetary value arrived at by the parties, but the court need not award the full "worth" of the claim. The court need only consider what should be awarded to achieve substantial justice, considering the needs of both the primary and secondary parties, namely the actual parties, the attorneys and any insurance company involved.

Now, the court will address the interests of the secondary parties to this litigation. The interests of the attorneys for the plaintiff are obvious. They practice law for a living, and they, as it is with any other business, have an overhead to maintain and profits or salaries to distribute. Sometimes we forget that lawyers are people too, and they are entitled to make a decent living to provide for themselves and their families. The court also recognizes that personal injury litigation and the kind of investigation recited by the plaintiff’s counsel is expensive. An insurance company has many legitimate interests as well. They include limiting liability to control insurance premiums and profits and limiting the cost of litigation. While all those considerations are important, the primary consideration for this court is offering substantial justice to the parties. They are fully-capable of addressing this loss and its consequences. The court believes litigation should be driven by the interests of the parties and substantial justice and not attorney fees, litigation costs, or the cost-saving policies of insurance companies. When those become the primary consideration, both attorneys and insurance companies have a conflict of interest to those whom they must serve. That includes the interests of both claimants and those against whom claims are made.

LIMITATIONS ON PEACEMAKING

The court will now address the suggestions made by the plaintiff’s counsel regarding limitations on peacemaking process and the court’s own limitations. The suggestions are:

1. Litigation costs

The plaintiff’s counsel indicates that the firm has advanced significant litigation costs for the investigation and prosecution of this case. Accordingly, the court will reserve the issue of an award of costs, but only reasonable costs of litigation.

2. Insurance coverage

The existence of insurance and the extent of insurance coverage are irrelevant to peacemaking. While the court is aware that insurance has been compared to the concept of nalyeeh, which includes the availability of resources to address need, talking out satisfactory arrangements in peacemaking should not be driven by insurance coverage. Just as the plaintiff’s counsel is concerned about the possibility of a settlement far below the "usual" amount, if there are policy limits which apply, the parties should not be allowed to take them into account, either to stay within coverage limits or exceed them. The court will reserve to itself any issue about insurance policy limits. The traditional amount of nalyeeh is, as one unnamed Navajo put it, "enough so that there are no hard feelings." That is what the parties can talk about.

3. Insurance company representatives in peacemaking

The plaintiff’s counsel’s point about the presence of insurance company representatives in any peacemaking session is well-taken. Just as attorneys are not permitted to be in peacemaking, there is no place for insurance adjusters or officials in peacemaking.

4. Summaries of position

The plaintiff’s counsel suggests that each party should give written summaries of their positions to the peacemaker or peacemakers. There seems to be an assumption that peacemakers either make the final decision or compel the parties to reach a given conclusion. That is not the case, and advocacy by counsel has no place in peacemaking, even if it is indirect, as proposed.

The court also counsels the attorneys in this case that while they may give information to their clients so they will know their rights, the attorneys must not tell their clients what positions to take. They must not tell their clients to refuse to cooperate with the process or to take a given "hard" position. It is sufficient if each party understands that decisions made in peacemaking must be reached through consensus. No one need agree to a given conclusion, and no one should be coerced to reach any decision. There must not be coercion within a peacemaking session, and it is improper for attorneys to apply coercion on the outside in the form of ordering their clients to do or say what the lawyer wants them to say. The court reserves the authority to seek summaries of position if there is a peacemaking agreement to review.

5. Admissibility of matters developed in peacemaking

The plaintiff’s concerns that anything said or revealed in peacemaking should remain confidential are well-taken. The plaintiff’s attorneys tell the court that a police officer has indicated an interest in the possible criminal prosecution of the defendant. Proceedings in peacemaking must remain confidential, with the exception of any evidence of fraud, coercion, unconscionable practices, or other conduct which would void an agreement.

Confidentiality has several foundations. First, talking things out in peacemaking is actually settlement discussions, which are not admissible in evidence. Second, the "judges" in peacemaking are the parties themselves, and they should have the judicial deliberative privilege. Third, the parties should have use immunity if there is any possibility that anything said by the defendant may be used against him in a criminal action.

6. Selection of the peacemaker

The plaintiff’s counsel essentially wishes to use arbitration practice by asking that the parties select the peacemaker or peacemakers who will be involved. Peacemaking is not arbitration, and since peacemakers do not make decisions, there is no reason to take a page from the book of arbitration procedure. The court peacemaker liaison will make the selection.

7. Deadline

It is reasonable that any and all peacemaking sessions should be concluded prior to the end of August, and that will be ordered.

8. No appeal

There is a mixed ruling on this condition. That is, if the parties make the decision, and it is accepted and made a judgment of the court, there can be no appeal. However, that is valid only as to the agreement of the immediate parties between themselves. This court has bifurcated proceedings into traditional Navajo proceedings in peacemaking and regular adjudication proceedings. If a party is dissatisfied with a decision made by the court on the adjudication side, then the court cannot deny a party the right to an appeal on an adjudication issue. This suggestion could be resolved through a stipulation of the counsel for the parties.

9. Costs of peacemaking

While it is reasonable to require the defendant to pay the peacemaking costs, the issue is how much should be paid. The normal sum charged by peacemakers is $60 per case, plus reasonable expenses. At this point, the court sees no reason to increase that amount unless an extensive amount of time is involved and several peacemaking sessions are required. At end, this is a tragic roadside death, taking place in on a dark December night, and it is not one which is unusual for those who drive or walk along Route 666. The court will reserve the issue of the amount of peacemaking costs, depending on the circumstances. The defendant requested peacemaking, so his attorney will be responsible for arranging payment of the costs of peacemaking.

9. Attorney fees

The court raises this issue on its own because it recognizes that one of the sticking points with peacemaking for personal injury lawyers is attorney fees. The parties will discuss, as between them, the amount of compensation that is necessary so that there are "no hard feelings." The court has some difficulties on the issue of attorney fees.

The Navajo Nation has adopted the "American rule" of attorney fees that each party bears his or her own fees. Despite that, the court is aware that the contingent fee is the standard payment arrangement in personal injury cases. While the court cannot award attorney fees as costs, the court can hear arguments on the "going" rate or value of a case such as this and take that into consideration when reviewing any settlement agreement. Again, this court must do substantial justice, and that includes taking into account the amount of reasonable attorney fees in a similar case which happens to go to trial or which settles using standard case evaluation techniques.

This court wishes to give the litigants the option of utilizing peacemaking to settle their dispute but at the same time strike a balance to address the interests of the secondary parties, i.e. the attorneys and an insurance company.

This is a novel approach, and the court recognizes that it has been placed in a position where there is no precedent and little guidance. However, one of the duties of the court is to uphold the sovereignty of the Navajo Nation and the dignity and driving force of Navajo common law. Can Navajo common law, including peacemaking, remain the law of preference of the Navajo Nation, and can the interests of the attorneys in this case be addressed as well? This is an attempt to do so.

Accordingly, it is hereby ORDERED that:

1. The defendant’s motion for peacemaking is hereby GRANTED, and the peacemaker liaison for this judicial district will make immediate arrangements for peacemaking, including the selection of a peacemaker or peacemakers, notification to the parties, identification of and notification of proceedings to all those who have an interest in the peacemaking and including, if desired, the police officers and emergency medical technician at the scene;

2. If police officers or an emergency medical technician are present, the discussion in their presence will be limited to the issue of the intoxication or not of the decedent, clarifying that matter, and addressing that issue;

3. The court will review any agreement reached in peacemaking, including a settlement decision by consensus or the reasonableness of a lack of agreement, and the standard for review will be substantial justice;

4. The court reserves the following issues for its consideration following peacemaking:

a. An award of the reasonable costs of litigation;

b. Arguments directed at insurance coverage;

c. The reasonable costs of peacemaking;

d. Attorney fees as a component of the reasonable value of the case;

e. Fraud, deception, coercion, unconscionability, and the validity of any agreement;

f. The conduct of the attorneys and agents of the parties in relation to peacemaking; and

g. Such other matters as may arise in this action.

5. No attorney for the parties or insurance company adjuster, agent, or representative may participate in any peacemaking session.

6. No fact or matter revealed in peacemaking, except for facts and matters which may go to the protection of the parties and the validity of their agreements, may be used in evidence in the future in this case or any other case, the parties and participants shall have the deliberative privilege, and the defendant and any person whose rights against self-incrimination may be implicated shall have use immunity for anything said in peacemaking;

7. All peacemaking procedures will conclude on or before Tuesday, August 31, 1999, and the peacemaker or peacemakers shall make a report to the court on or before Friday, September 3, 1999;

8. The defendant, through his attorney, shall make arrangements to pay the reasonable costs of peacemaking.

Dated this 3^rd day of August 1999

Irene Toledo, District Court Judge

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