Despite heroic efforts by courts and court personnel, data for 2020 reveals that the number of trials dropped by more than half as compared to 2019. An article published by the ABA recently reported that court backlogs have increased by an average of one-third during the pandemic. This all occurred while the pandemic pushed down the number of cases being filed because some courts responded to the pandemic by limiting the filing of cases. The Courts Statistics Project reports that courts will experience an increase in case filings and caseloads, an impending shadow docket, as activities return to pre-pandemic levels. This exacerbation of a major pre-existing efficiency problem perhaps cannot be fixed: a society moving ever faster, stuck in an ever slower judicial system.
Jury trials and even bench trials are becoming an anomaly and the trend will continue. Case backlogs have increased and will continue to do so. The time that it takes to conclude cases has increased and this will continue with the impending deluge of new filings. This amounts to a perfect storm for United States’ court systems. Add to this a fact that is all but ignored: It is estimated that of those cases that end in a judgment, 80% of those judgments go uncollected. So, even if you win, the victory is often pyrrhic.
With statistics, information, and data like this readily available, the time for hard questions is past due. Is it tantamount to malpractice for a lawyer not to inform a client considering litigation of these facts related to traditional litigation? Should a lawyer be mandated to discuss and perhaps even suggest alternative forms of dispute resolution with their clients as some courts command? And the bottom line, can we as a nation continue to blindly follow a traditional litigation path when it is becoming indisputably clear that such litigation is no longer the best method to resolve disputes?
Compare this to other forms of ADR. It has been estimated that 85% to 90% of mediations result in settlement. In settlement you have a negotiated resolution of the matter and you get paid. The parties are in charge, and the process is less stressful and more efficient, with the conclusion certain. A reoccurring dig is that the suggestion of mediation is a show of weakness. Perhaps this is a vestige of historical masculinity. In what society is it considered weak to follow a dispute resolution process that is less expensive, less time consuming, less emotionally draining, and generally positive for the parties?
A recent ABA study found that litigation alternatives ranked significantly higher in predictability, speed, and cost effectiveness, and, of the alternatives, those involved agree that mediation is the fairest way to resolve disputes. The study also found that voluntary agreement increases the likelihood that the outcome will be satisfactory to the parties involved.
The Global Pound Conference is a series of conferences designed to study and improve dispute resolution. One of the findings of the Pound Conference is that the best way to resolve a dispute is through a combination of collaborative, non-adjudicative proceedings such as scheduled conferences between the parties and informal and formal mediation, while using arbitration or traditional litigation as a last resort.
So why is a process that is readily available and a hands down better option for litigants being under-utilized? It’s because of what the Honorable Wayne Brazil, former Magistrate Judge for the Northern District of California and former law professor at Hastings College of Law, describes as an “adversary culture.” That adversary culture is the dogma of most litigation firms and in house legal departments. We cannot expect centuries old habits to die abruptly without consumer demand driving fundamental change. A first step toward that demand shift comes with the dissemination of information related to the failure of the traditional litigation model. Investing in dispute prevention and early dispute resolution practices is a smarter choice than paying the exorbitant costs of protracted litigation. Parties need to drive this change and lawyers need to reconsider traditional attitudes toward dispute resolution.
Fortunately, great strides are being made in early case assessment, early dispute resolution, collaborative law, mediation and arbitration. It is beyond time for a dispute resolution revolution in the United States. The ABA Section of Dispute Resolution has been at the forefront of this shift and is leading the charge by providing education, training, and mentorship to ADR professionals. As ADR is undoubtedly superior to litigation for resolving most disputes, clients and lawyers alike must seriously consider ADR as the first choice for dispute resolution.
