Our justice system is going through a quiet revolution, away from what you often see on TV.
There you see disputes - from murder cases to divorces to civil money-claims lawsuits - hashed out in trials, in open court. You can’t blame the drama writers: It’s the entertaining way.
But if you go to watch the action at your local courthouse, you won’t see much of it, at least not out in the open. Compared to a generation ago, far more cases are settled away from trials, away from the courts, as a part of a deal-making process.
This comes to mind as I think about a new book (which - disclosure here - I helped publish), called Mediation Mechanisms, by Duff McKee, a retired fourth district judge who has mediated a couple of thousand or so cases. (The book is available at ridenbaughpress.com, at Amazon.com and elsewhere.) His book is about how mediation works, on a practical level.
He also writes, “When I began practicing law in the mid-1960s, it was a concession of weakness to be the first one to bring up the subject of settlement. This meant that the other lawyer had to raise the subject first if the case was to get settled. This led to bizarre communications between lawyers dying to discuss settlement without either one appearing to be the first one to utter the question, ‘Can’t we settle this?’”
Now things have changed, most especially the ballooning cost of litigation and crowded court calendars which led to more judges imploring lawyers to settle the dispute out of court, and to clients who can’t afford the public show. The costs, especially for such things as discovery, document research, expert assistance and more, can put the cost of civil action out of reach for most people.
These days, McKee said, “the settlement process is now primary in the minds of most litigators and most judges. Trial calendars with multiple settings are a fact of life, with cases stacked four to six deep, in the full expectation that five out of six scheduled cases will settle before trial.”
A few weeks ago I talked this over with a couple of long-established Boise lawyers, and they strongly agreed. One said that two or three decades ago lawyers at his firm would spend much of their time at or preparing for trial; so far this year, by contrast, only about one in ten attorneys there have undertaken even a single trial.
Another attorney I’ve known for several decades shifted several years ago from work in litigation and trials to almost exclusively working in mediation and arbitration.
As McKee said, “the civil case mediation has come of age in our system.”
That has its good points and some not so good. On the good side, settlements can lead to more compromises and to resolutions that can be fairer all around; many legal cases really aren’t all black and white, and many cry out for some answer that encourages each side to give a little. Many people may come out of the system less damaged.
The downside is that not all cases are like that, and our legal system should have a practical way to come to grips with right and wrong. Sometimes someone really should be put in the position of having to pay, and someone ought to be clearly vindicated.
Ironically, or maybe not, as we’ve moved into ever-sharper “win-lose” divisions in our politics and policy, we seem to be moving into a legal system edging toward thoughtful discussion and compromise.