Dramatic Shift in Dispute Resolution

Over the past 200 years, lawyers have taken great pride in the American judicial system, which seeks the truth and all instances and to do justice to all who enter its hallowed Halls. However, in the last several decades, there has been a dramatic shift in the way Americans resolve their differences from the courtroom to the conference table. It is called mediation.

In the early 1980s, the then Chief Justice of the United States Supreme Court, Warren E Burger, launched an attack on our Judicial System. He stated:

"Traditional litigation is a mistake that must be corrected. For some disputes trials will be the only means, but for many claims trials by adversarial contest let's go the way of ancient trial by battle and blood. Our system is too costly, too painful, too destructive and too inefficient for truly civilized people."

And he attacked the legal profession for promoting litigation. He went on to add:

" The entire legal profession, lawyers, judges, and law professors has become so mesmerized with a stimulus of the courtroom contest that we tend to forget that we are to be the healers-not the promoters- of conflict."

Indeed, Chief Justice Burger redefined the lawyers obligation to the client. He said, that to fulfill the" traditional obligation means that we should provide mechanisms that can produce an acceptable result in the shortest possible time, with the least possible expense, and with minimum stress on the participants. That is what Justice is all about."

The Chief Justice promoted mediation as the elixir because it is less costly, less painful and destructive, less inefficient than the courtroom trial. And he has been proven correct because mediation continues to grow as a primary means to resolving differences to the point it is now clearly winning out in the marketplace. One federal judge stated there is now a "dispute resolution marketplace and mediation seems to be prevailing in that market."

The courtroom trial is unacceptable to the many because it is based on an adversarial principle that to resolve differences the party must go to battle; someone must be defeated. It is second only to outright conflict on the field of battle in intensity and adverse consequences. Mediation, on the other hand, which actually predates the courtroom trial by several thousand years, goes back to the time of Confucius in China. Mediation in the Confucius view is considered " the socially proper way to settle disputes, used by the superior man." The courtroom trial is considered a "shameful last resort, the use of which signifies embarrassing failure to settle the matter amicably."

Focusing more narrowly on the reasons for the success of mediation in the last decade, one is struck by the high cost of litigation. Pretrial Discovery in major litigation can cost n excessive 40 million dollars and even 80 million dollars as occurred in one case involving Microsoft Corporation. One federal judge stated:" while we have created the fairest system in the world for resolving civil disputes, it is so expensive that very few people in America can afford to use it. The court system serves the rich, those with insurance and those who can shift the cost of litigation to the rich and those with insurance. I cannot personally afford to use the system that I treasure. However, even more trenchant is the discomfiture and pain it causes parties and advocates alike. One judge of high academic acclaim, judge Learned Hand said, "I must say that, as a litigant, I should dread a lawsuit beyond almost anything else in life short of sickness and death."

Although mediation is a significant factor today in resolving disputes, few persons outside the legal profession have an understanding of what it is. What questions do you have about mediation?

Dick Calkins is a former Dean of Drake University turned Mediator. Since 1996 he has trained over 1000 lawyers and 1300 law and undergraduate students and conducted over 2100 mediations. He is also the founding member of the International Academy of International Dispute Resolution and the Inns of Mediation.