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Formalism And Mediation

Justice Scalia is known for his theory of interpreting the Constitution by reference solely to the text in light of the meaning that the drafters supposedly intended at the time they wrote it. In his book A Matter of Interpretation, Scalia has defended his approach as follows:

Of all the criticisms leveled against textualism, the most mindless is that it is formalist. The answer to that is, of course it’s formalistic! The rule of law is about form . . . A murderer has been caught with blood on his hands, bending over the body of his victim; a neighbor with a video camera has filmed the crime and the murderer has confessed in writing and on videotape. We nonetheless insist that before the state can punish this miscreant, it must conduct a full-dress criminal trial that results in a verdict of guilty. Is that not formalism? Long live formalism! It is what makes us a government of laws and not of men.

It’s interesting that in this passage Justice Scalia chose as an example the most empty kind of formalism: our willingness to provide a defendant with a completely pointless criminal trial, in a case where there is absolutely no question about the defendant’s guilt.  In the real world, such a trial would almost never take place.  Criminal defendants who have been caught red handed, and have confessed on videotape pretty much always plead guilty.  So what is Scalia celebrating?   The right of a criminal defendant to ask for a trial that he is almost never going to ask for? Why didn’t Justice Scalia give an example where formalism can make a real difference, such as where a formal rule requires that we exclude illegally-seized evidence, even though that might allow a guilty defendant to go free?  Or what about formalism in estate law, where the court might not admit a will because the decedent failed to comply with some formalistic requirements of the will statute, even though we know that will thwart the testator’s intent? In the real world, our insistence on legal formalism may have a lot of adverse consequences like that. Formalism can be important to protect people’s rights and encourage compliance with the law, but adherence to formalism can also delay or deny substantive justice. None of us, even Justice Scalia, is always going to be satisfied with all of the results that formalism dictates.

One thing Justice Scalia seems to be missing is that the legal system has been steadily moving away from empty formalism of the kind he seems to be encouraging. For example, the adoption of the Federal Rules of Civil Procedure in 1938 could be seen as a rejection of formalism.  Those reforms sought to avoid having cases decided based on restrictive, technical rules that sometimes tossed out meritorious claims.  The Rules’ pleading innovations, combined with supposedly open and free exchange of factual information through discovery, were supposed to lead to decisions based on the facts and the law, not on tricks or games. Unfortunately, the rules have evolved to the point where they may no longer be serving their intended purpose. We have allowed discovery to become cumbersome and expensive, and we have erected new barriers to proceeding to the merits, such as enhanced pleading requirements, complicated summary judgment motions, and new grounds for excluding evidence. We have created opportunities for both sides in civil suits to create issues that are expensive and cumbersome to resolve. As a result, we face the danger once again that we never get to the merits. Justice Scalia’s comments above may explain in part why the Supreme Court has encouraged this trend back toward formalism, but the Justice doesn’t really explain why that is a good thing.

At the same time, however, other rules innovations have continued the trend of openness and informality, by for example, making initial disclosures automatic, requiring the parties to confer on discovery plans and prior to initiating motions, and referring cases to mediation and other forms of alternative dispute resolution that are less encumbered by formal rules.

The point is that these opposing tendencies will probably always be in conflict.  Proponents of informal dispute resolution will probably always be faced with skepticism from those whose world view tends toward formalism, and the proponents of formalism will probably always try to encrust any system we can devise with mechanical requirements that encourage the resolution of disputes by laws rather than by human beings.

Mediators should try to keep the proponents of formalism at bay. We recognize that some rules are needed to govern the process, but whenever we start to create too many obligations and prohibitions on the part of parties or mediators, we just encourage objections and motions and argument and sanctions and adversarial proceedings to determine whether the rules have been violated. That allows in a way of thinking that is antithetical to the spirit of voluntariness, cooperation, openness, and agreement, that is the essence of mediation. Whenever I read about cases in which parties are accused of not negotiating in good faith, or in which parties go back to court to interpret or enforce agreements they believe were reached at a mediation, or in which a mediator is asked to testify or is accused of misconduct, my reaction is that the mediation has failed in its essential purpose of persuading parties to resolve their dispute in a different manner. Mediation works precisely because of a relative absence of formalistic rules, and we have to vigilant against their encroachment.

Just for fun, here’s another situation in which rules can get in the way of resolving a dispute:


Joe Markowitz

Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both… MORE >

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