General Practice, Solo & Small Firm DivisionMagazine
Volume 17, Number 7
Dispute Resolution: An Evolution
During our country’s the first 150 or 160 years, the philosophy behind dispute resolution was, "Look, we try to settle things. If we can’t, we file these papers in court, and use that forum to take care of it." Litigators knew that there was some connection between the processes of negotiation and litigation. Whenever a litigated case was filed, lawyers would snap back like a rubber band and try to negotiate the case. In so doing, we would send a message that made the other side take us seriously.
After receiving the summons and complaint, the other party would realize that he or she must appear in court. This inconvenience would encourage the other party to talk. As a result, the parties would get on the phone and settle a huge number of cases simply by negotiating directly with each other. One commentator has indicated that often we file papers in court for the primary purpose of getting the attention of the other side so we can negotiate. This has been cleverly referred to as "litigotiation."
Litigators in the 1970s and 1980s faced an increasingly overburdened court system. At one point, it took more than 60 months to get a civil case to trial in the Los Angeles court system. Litigators began to observe that perhaps there were other choices available that managed costs and were more efficient—and more timely—than trial. We looked at other cultures, borrowed ideas from the labor field, and realized that some clients would be better served if their cases were resolved somewhere other than a courtroom. We then started using arbitration for smaller civil disputes, because that process had worked for years in labor contracts and was less formal and less costly.
In the 1970s, arbitration was making its way up the ladder, but mediation didn’t catch on as quickly, despite being used in the labor field. Yet litigators were still looking for a way to negotiate, possibly with the help of a third party, similar to an arbitrator, but one who could not make a decision on the case.
Early mediation programs grew out of the family law courts, which had observed that there might be a more humane way to solve certain problems than presenting them in a public forum. Family law litigators started to move in the direction of mediation because the issues with which they dealt, such as child visitation and custody, weren’t handled best in a courtroom environment. In fact, the early mediation programs in family law courts envisioned using neutral third parties, who were not necessarily members of the bar, to serve as mediators.
Following the lead of family law, civil litigators began to see the value of bringing in a neutral third party to assist or facilitate in the negotiation process. It took about 15 to 20 years to institutionalize the mediation system into our civil justice system as a viable option for litigators who want to settle their cases without going to court.
About ten years ago, more options became available, because people began to tailor their mediation or arbitration process to match the particular dispute. Now we have at least 25 hybrid processes available, ranging from baseball arbitration to mini-maxi arbitration, with various processes in between, including summary jury trials, med-arb, and much more.
We are now beginning to reframe our choices so that the strategies we select to intervene in a dispute give us the best possible chance of achieving resolution at the lowest possible emotional and financial cost to our clients. Negotiation is at the heart of many of these choices. Whether we use negotiation to settle a case or to parlay a matter into another procedure that is less intrusive than court, litigators must fundamentally rely on the negotiation process for everything they do.