Mediation and the Bill of Rights/Martin Rosenfeld

Posted on May 23, 2013


The NY Public Library has had an original  copy of the Bill of Rights. (14 original copies had been made in 1789.)  The only problem is that a copy had been missing from the State of Pennsylvania archives. It was suspected that the New York copy was actually the copy that had been owned by the State of Pennsylvania. A Philadelphia lawyer, Stephen Harmelin, had contacted Attorney General Tom Corbett (now Governor Tom Corbett) with a theory that explained how this Pennsylvania document had found its way to New York. However, theories are merely that and neither New York nor Pennsylvania could prove definitively that the document was theirs. Attorney Harmelin had the idea that since the document could not be cut in half, it would make sense for the two states to share the document. Per the agreement, the document will be in Pennsylvania until 2017 and will then be housed in New York until 2020. The sharing agreement will continue with minor modifications after 2020.

When asked for the reason behind the sharing proposal, Governor Corbett indicated that the proposal avoided the cost of litigation and the uncertainty of an adverse decision. Litigation is not only burdensome; it can also lead to unpredictable consequences.

What we have in this case is the perfect example of mediation at its best. One concerned attorney, who probably believed that his home state of Pennsylvania had rights to this document, pursued a means of a settlement. The historians in two states won this one as did the taxpayers of these states. Litigation rarely makes sense where people are willing to discuss their differences and come up with reasonable proposals. We refer to this as Win-Win. The cost of litigation is not only a monetary one. Litigation exerts a psychic and emotional price as well. Again, the lesson that “mediation works” rings true. Mediate don’t litigate.