The Unintended Circus

As we closed out 2012, amid fears the country would fall off the financial ‘fiscal cliff,’ a ‘fiscal cliff’ of another kind was created for a usually irreproachable non-profit organization, The American Society for the Prevention of Cruelty to Animals, as a result of a court’s decision.

In an editorial in the Wall Street Journal December 30^th, 2012 entitled, The Elephant in the Courtroom, the story was told of how an animal abuse lawsuit was brought by the ASPCA, several animal protection agencies and a former employee of the circus. The litigation was initiated in an effort to stop the age-old practice of having trained elephants perform at the circus.  The plaintiff’s theory revolved around an argument based on the Endangered Species Act.  The court found the petitioners had no standing under the act. The animal trainers and the circus prevailed.  The ‘fiscal cliff’ was real for the Not for Profit - ASPCA.  A settlement, worked out between the parties and endorsed by the court, awarded 9.3 million dollars to the circus, to be paid by the ASPCA.  This is likely one of the first decisions of its kind, awarding damages to a defendant in a lawsuit brought by animal activists.  This is the tale of a lawsuit that went terribly wrong!

The litigation was started on the premise a former circus employee’s testimony would supply the information needed to show circus trainers mistreated the Asian elephants.  However, the court did not find the employee’s testimony credible and felt he was, “a paid plaintiff and fact witness.”  The case backfired on the ASPCA.

Yet, who really lost here? Sadly, the losers are homeless animals everywhere, who are served by the ASPCA, and need every penny of the 9.3 million dollars that now must be paid to the circus. These homeless and injured animals now may not have a chance at a better life—or any life at all. 

The plaintiffs and their attorneys pinned their hopes on a novel argument under the Endangered Species Act. They believed the court would find their argument had merit, decide in their favor and thus free the Asian elephants from circus slavery.

The lawsuit took 12 long years from start to finish.  The legal argument was novel but unfortunately not entertained by the court. The circus paid dearly in legal fees for this win and was compensated by the court. The ASPCA & Friends legal expertise was most likely provided on a ‘pro-bono’ or free basis.  Yet, was it really free?  Was this the best use of these competent, compassionate and animal loving people’s time over the past 12 years?  Did the animals they were trying to save need saving?  Or has, as the article eluded, the ASPCA become ‘politicized’ and no longer interested in simply, “look(ing) out for the well-being of homeless and loveable dogs and cats.”

If ever a template for the use of Alternative Dispute Resolution in conflicts between people about animals was created, this case is the North Star.  The petitioner’s attorneys worked for 12 long hard years and yet made no progress. The attorneys for both sides either donated or were compensated for hours upon hours of legal work so they could argue for or against the petitioner’s description of the plight of the Asian elephants in the circus.  In the end, the one prevailing fact that emerged was that spending this kind of time and money, in pursuit of a theoretical legal argument to save an animal, is not always in the best interest of the animal being protected.

In 12 years, a mediator or collaborative professionals, could/would have worked with all the parties to forge incremental changes in the situation confronting the circus elephants.  These small steps, taken over the course of 12 years, may have resulted in huge strides in the right direction for the elephants instead of maintaining the status quo. 

Alternative Dispute Resolution-Mediation and Collaborative process, stand out from ordinary means of conflict resolution, mainly litigation, because everyone is listening as a party speaks of the treatment they want for, or are providing to, an animal. This may be the most difficult part of ADR practice in animal issues.  The ADR practitioner must enable all parties to a conflict to listen, respect and understand each others position, even if the care provided, or not, is an anathema to anyone’s sensibilities.  A dialogue is now open.  In the opening of this dialogue is the hope for future communication to take place and in that communication a laying of the foundation for sustained positive change. 

Listening to each party, without judgment, is key to a person re-examining their position.  If a party feels someone in the room, the mediator, collaborative professional or other party, understands and respects them and the manner of care they are providing for an animal, they are likely to listen and hear what the other side is saying when it is their turn to speak. 

When it comes to listening to a description of the horrible conditions in which an animal is living, it is incredibly difficult to stand by and do nothing.  Most people’s first reaction is to swoop in and remove the animal.  Yet, by doing this you disrespect the care provider.  This is the way they care for their animals.  When you come in and tell them it is wrong, their hackles go up.  They no longer want to listen to anything you have to say.  You have judged them, in their opinion, unfairly.  By telling someone you disapprove of the manner in which they care for their animal, you often do nothing to improve the animal’s quality of life. 

The old adage, “Give a man a fish and you feed him for a day; teach a man to fish and you feed him for a lifetime,” is a better fit here.  Coming in and rescuing the current group of animals will make you feel better.  It will have no impact or a negative impact on the animals that remain or come along later.   Animal abusers find new pets to fill the void left after the good Samaritan saves the current crop of victims.

I am an animal lover.  I belong to multiple animal organizations, both legal and non legal. I never advocate for the continued abuse of animals.  I advocate for a process wherein we take a good look at the long-term success of a course of action and ask ourselves if the process we’ve chosen is in the best interest of the animals we are trying to help.  If you win, bravo!   Then you have to implement the change decreed.  How easy will that be and will the animosity land you back in court? If you lose, you go home?  In both scenarios, the animal continues to suffer, allegedly like the elephants in this case.

If you can sit down, listen to, understand and respect a party’s manner of care for his/her animal, this simple act may provide movement in an otherwise immovable relationship.  If parties can come to the table not tied up in winning at any cost and will consider small incremental victories along the way, for both the parties and the animal, it is rewarding to watch as the animals you are protecting begin to benefit immediately.  You don’t have to wait 12 years for a decision that many not go your way nor receive a decision, in your favor, that you then have to structure fulfillment of the terms. Immediate implementation goes hand in hand with the ADR discussion, process and longed for agreement.

In this case however, the circus elephants remain on the job, the ASPCA received an expensive black eye and a cause, argued experimentally under the Endangered Species Act, was found without merit.  If a conversation, guided by an ADR professional, had been initiated and the parties’ felt heard, the big winner here would have been the Asian elephant, not one party over another. 

CR Hamilton Law and Mediation – Debra Vey Voda-Hamilton, Esq. 2013