In my youth, said the sage, I took to the law
And argued each case with my wife
And the muscular strength it gave to my jaw
Has lasted the rest of my life.
Mediators need to know something about litigation. When we talk about ADR – alternative dispute resolution – we are talking about alternatives to litigation. Litigation is partly what drives mediation. It is also, partly, the competition. Litigation is attractive to people. We need to know why litigation is so attractive. What does litigation offer people?
Litigation is “adversarial.” All metaphors to do with litigation are of war, battle, conflict, crushing the enemy, scoring a home run, winning, and oh yes, losing; half of those who step into the ring come out as loser. Like tossing a coin, statistically the proportion of winners to losers is exactly 50:50. The winner takes all.
“Winning isn’t everything; it’s the only thing.”
Many conflicts are avoided by means of diplomacy. War is what happens when diplomacy fails. Even Hitler didn’t send in storm troopers if he could get his way by bluffing. In the 19th century, the British used to send a diplomat to do the talking, and a gunboat for emphasis; it was called “gunboat diplomacy.” The goals are the same; the methods differ greatly.
“War is a continuation of diplomacy by other means.”
The alternative to a litigated result is a negotiated result. Negotiation is an alternative to litigation. Mediation is a facilitated form of negotiation. So when we talk about mediation as a means of alternative dispute resolution, we are contrasting it with litigation. Litigation is the standard method. Litigation is what law students go to law school to learn. The legal system is a vast edifice composed of courtrooms staffed by judges and court personnel, the attorneys who practice before them, the law schools that teach them, and the long tradition that fills the libraries with the endless statutes and decisions that comprise “the law.” Litigants retain attorneys to plead their cases before the courts. This is the state sponsored and approved method of resolving disputes in our society. This system has been in place for hundreds of years. It is not likely to go away any time soon.
The law as practiced in the United States is based on the common law, having its roots in twelfth century England, and the common law incorporates many concepts and expressions from Roman law. This is an ancient system; it must have been doing quite a lot right to survive so many centuries.
A great deal of mediation is practiced in the context of the litigated case. To some extent, the legal profession has incorporated mediation into the litigation process, not as an alternative means of resolving the dispute entirely, but as a substitute for a court or jury trial. Mediation in this sense has been co-opted into the litigation process. That is why we read such remarks as that of a former Chief Justice of the Supreme Court of Ohio, Thomas J. Moyer:
“For more than 220 years, the American system of justice has been a place for the peaceful resolution of disputes. It is fundamentally an adversary system…but many disputes are better resolved through processes that are not adversary…the courts increasingly offer mediation and other dispute resolution processes. . .”
Why do people seek an alternative to trials? An even more explicit answer is found in the words of no less a figure than a former Chief Justice of the U.S. Supreme Court, Warren E. Burger:
“The entire legal profession – lawyers, judges, law professors – has become so mesmerized with the stimulation of the courtroom that we tend to forget that we ought to be healers of conflicts. For many claims, trials by adversarial contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people.”
If even the Chief Justice considers that the legal system is too costly, painful, destructive, and inefficient, then one may reasonably wonder why people are so ready to avail themselves of it. What is the basis for the strong public demand for a system that so many legal professionals find so unsatisfactory? What is the attraction when the statistical failure rate is 50%? Shakespeare fully understands the attraction of the law. In the Merchant of Venice, Shylock expresses his demands for justice in striking language:
“The pound of flesh, which I demand of him, Is dearly bought, is mine, and I will have it. If you deny me, fie upon your law . . . I stand here for the law.”
In answer, Portia pleads for mercy for her client, exquisitely expressing the flaw in our ideas about justice:
“Therefore, though justice be thy plea, consider this, That in the course of justice None of us should see salvation.”
Shylock responds: “My deeds upon my head! I crave the law.”
Contrast this with Chief Justice Burger’s remark:
“The obligation of the legal profession is . . . to serve as healers of human conflicts . . . we should provide mechanisms that can produce an acceptable result in the shortest possible time, with the least possible expense and with a minimum stress on the participants. That is what justice is all about.”
Actually, that is what mediation is all about. Mediation is about at least a minimum level of healing. Justice is about winning, and inflicting loss. Mediation is about acceptable results, that is, acceptable to both parties. Justice cannot be about acceptable mutual results, because one side always loses. Justice is not about getting things done in the shortest possible time, since most cases take at least a year, sometimes several, sometimes many years, whereas mediation can accomplish a satisfactory result within a day. Justice is not about minimum stress; it is about conflict. It is in its nature stressful; that is why what goes on in court is called a trial.
When people get into a legal dispute, they naturally go to an attorney for advice and help, and attorneys are trained in the adversarial processes of the common law. Just as medical students go to medical school to learn medicine as practiced by the medical profession, and not “fringe” alternative procedures, so law students are taught what the majority of the legal profession is practicing. When the Chief Justice states that our system is too costly, he is talking for the most part about the cost of attorneys, for the fees of attorneys in most cases make up the greater part of the costs. Attorneys have a vested interest in the legal system.
One might feel free to wonder, if the adversarial system is so painful, destructive, and inefficient, why the legislatures and judiciaries of this country do not take steps to alter the system so as to make it less painful, less destructive, and more efficient. Perhaps many have the desire to do so, but reforms are difficult to achieve.
When a system has been in place for so long, and when all the law schools of the country are devoted to training young people in the intricacies of that very system, and when the livelihoods of every person who works within the system depends upon it, then it is asking a lot to expect that change will come from within. That goes a long way to account for the growth in the alternative dispute resolution system.
Even though the majority of filed cases do not go to trial, but are settled, and even though mediation is frequently used in effecting settlement, it is seen as an adjunct to, and not as substitute for, the litigation process. In California state courts, less than 4% of filed cases end in trial. In Federal courts, only about 2% of filed cases end in trial. Some cases get dismissed, or lose on a motion for summary judgment, or otherwise fall by the wayside (somebody dies, the parties cannot afford to continue, etc.), but most of them are settled one way or another.
Yet very good reasons exist why people routinely prefer the litigation system rather than alternative dispute resolution systems. There are satisfactions to be gained, or thought to be available, through the courts, that cannot be achieved (or that are thought not to be achievable) through alternative dispute resolution processes.
A court trial fulfils, or is thought to be capable of fulfilling, five needs that are usually absent in a mediated settlement: a sense of vindication, a sense of empowerment, a desire to be heard publicly, a desire for the particular dispute to receive the stamp of legitimacy, and the desire not only that justice be done but that it “be manifestly seen to be done.”
Aggrieved litigants seek vindication, and further, they seek public vindication. That is to say, they want their “day in court,” no matter what it costs. Perhaps they will not really achieve vindication, but there is always the chance that they might, and they see a trial as the best chance they have of achieving it. People do not necessarily approach their conflicts in purely rational terms; they have strong emotional interests to satisfy, and a deep human desire to be proven right. They want to win, and they want someone else to lose. They want forever after to be able to tell themselves, their family and friends, that they won their case. They want bragging rights. People will pay a high price for this, and will bear not only the cost of the litigation, but also the risk of losing, in order to attempt it.
People want to feel empowered; they want to feel that they can create an impact. When they walk into court for trial beside their hired champion, the attorney, and sit in the world of the courtroom looking up at the judge, they feel that the full authority of the state, that embodies the society in which they live, has interested itself in their particular conflict. And, in fact, it has, even though the particular judge may not quite see it that way.
Closely allied with these impulses, is the desire to be heard, and to be heard in a public place. Today’s courtroom represents the public square, the place where citizens gather to be heard and to vent their grievances. Fed on television drama, a person feels entitled to a “day in court,” and indeed is entitled to it. Even if the actual experience of testifying in a courtroom may not impart, to put it mildly, the sense of satisfaction that was anticipated in the beginning, at least that judge represents the authority of the state, with all its authority and legitimacy.
Justice is usually represented by the figure of a seated woman, blindfolded, holding a sword in one hand and the scales of justice in the other, but justice has a retarded little sister whose name is Revenge. One definition of justice is “the administering of deserved punishment or reward.” One definition of revenge is “to exact punishment or expiation of a wrong.” If justice is the outward act, revenge is the inward feeling of satisfaction that accompanies it. Like Shylock, people “crave the law; “ like Shylock, this is often a code word for revenge.
In summary, litigation offers satisfactions that other forms of conflict resolution usually cannot match. These are: (1) vindication (2) empowerment (3) public hearing (4) legitimacy (5) justice. [B. Mayer, 2004]
Mediation does not offer, or is thought not to offer, these satisfactions. Successful mediators need to understand realize that the needs driving litigation are strongly felt, and seek to find some way to accommodate them. It is because the existing trial court system is so broken in many ways that disputants seek alternative means to satisfy their needs.
Yet mediation offers satisfactions that the litigation system cannot hope to offer. These are: (1) speed (2) choice of mediator (3) flexibility as to time and place (4) low cost (5) privacy and confidentiality (6) mutually acceptable results (7) control of outcome.
The reality may not turn out the way the process was imagined, but that imagining remains a powerful lure. For many litigants are first-time entrants who have never done it before; most of their education may have been in the illusory processes of movie or television courtroom drama. If they go through with a trial, they often find that the real thing is slow, technical, cumbersome, tedious, and turns out be emotionally disappointing.
That is why it is so easy to find great men writing cautions about litigation. Abraham Lincoln, a noted trial lawyer himself (he is estimated to have pled 5000 cases) wrote:
“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses and waste of time.”
Indeed, the theme of the disappointments of litigation is found as early as Cicero, greatest lawyer of antiquity:
“The litigious spirit is more often found with ignorance than with knowledge of the law.”
Yet there are good reasons why the existing system has lasted so very long. Our society is said to be “litigious”. That may be so, but it is the public that drives the litigation, with its demands for the kinds of satisfactions that the litigation process offers to provide, even with all its expenses, risks, and frequent disappointment. With skill, a mediator may seek to satisfy at least some of the satisfactions of litigation, in addition to providing all the advantages of mediation.
In “Mediating Dangerously,” Ken Cloke has an A-Z list under the heading ‘What’s wrong with the law?” of which the following are selected here as the “top five”: “(1) it takes too long (2) it costs too much (3) it always creates a winner and a loser (4) Outcomes are often unpredictable (5) Results are based on fault, not on resolving the underlying issues.”
Yet contrast this view with these statements of Martin Luther King, who had his own reasons for insisting on formal legal process:
“It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that’s pretty important.”
The law is an elaborate creation. We may criticize it all we will, but in the end we rely upon it for the preservation of civil society. The 17th century words of the greatest of the common lawyers, Lord Coke, are alive and well in the 21st century:
“The common law is the best and most common birth-right that the subject hath for the safeguard and defense, not only of his goods, land and revenues, but of his wife and children, his body, fame and life also.”
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