If litigation is a search for truth, mediation is a search for solutions.
For many years ADR, alternative dispute resolution, meant arbitration. Arbitration was thought to be a quick and inexpensive private and confidential alternative to the traditional jury trial. Over time, however, litigators "judicialized" the arbitration process to the point that in many instances it is difficult to distinguish from a bench trial. In recent times, ADR has come to mean mediation. Mediation has grown to be the ADR process of choice for most litigators. In August 2000, the Michigan Supreme Court adopted new court rules, MCR 2.410 and 2.411 authorizing state trial court judges to order civil disputes into some form of ADR. For most disputes, that process has been mediation and the number of civil trials has dropped dramatically. At it's heart, mediation is simply an assisted negotiation utilizing the services of a trained "neutral" to help the parties better understand one another and communicate. In the U.S. District Court for the Western District of Michigan, the federal bench has adopted a Voluntary Facilitated Mediation program to which many civil disputes are referred. http://www.miwd.uscourts.gov/sites/miwd/files/vfm_program_desc.pdf In the Eastern District, the bench recently adopted a new Local Rule 16.4 providing new rules governing referral of civil cases to mediation. https://www.mied.uscourts.gov/PDFFIles/localRulesPackage.pdf
Arbitration, mediation, case evaluation, negotiation - and more - have led some observers to talk of "The Vanishing American Trial." http://epstein.wustl.edu/research/courses.judpol.Galanter.pdf
The "Michigan Judges Guide to ADR Procedures" lists many additional ADR processes from which parties may choose for resolution of their disputes. http://courts.mi.gov/Administration/SCAO/OfficesPrograms/ODR/Documents/ADR%20Guide%2004092015.pdf
ADR has become so pervasive, many ADR professionals today note the irony that the civil trial has today become the alternative dispute resolution process.
Have you tried a case lately? No? How long has it been? If your trial skills are getting rusty, you're not alone.
"Over the past 200 years, litigation in federal courts has continually changed.
The greatest change has taken place in the past 25 or 30 years. During this period
we have seen the almost total disappearance of civil trials in federal court." Rethinking Civil Litigation in Federal Court, by Hon. Patrick J. Walsh. The Journal of the Section of Litigation , Vol. 40 No. 1 Fall 2013 (ABA). http://www.americanbar.org/publications/ litigation_journal/2013-14/fall/rethinking_civil_litigation_federal_district_court.html
Judge Walsh provides data for all the federal circuits:
Circuit Total # Cases Filed % Reaching Trial
1st 5,721 1.5
2nd 22,351 1.6
3rd 42,825 0.9
4th 17,593 1.0
5th 27,094 1.4
6th 22,135 1.0
7th 18,506 1.5
8th 16,452 1.1
9th 47,437 1.9
10th 10,825 1.5
11th 37,988 0.9
Judge Walsh’s solution is to change the way discovery is conducted. If the chances of trying the case are only 1 or 2%, he questions the value of engaging in expensive, contentious and thoroughgoing discovery - of "everything". Perhaps; perhaps not. Even if the case is not going to trial, discovery has a significant influence on the outcome. Mediation works best when both sides have all the information needed to properly evaluate the case for settlement. Sometimes - as in the typical employment dispute - critical information is known only to one side.
The lessons for ADR are similar. If the case will not be tried, litigator strategies in preparation for mediation might be better focused on resolution options rather than trial tactics. If counsel invests as much time and effort in preparation for mediation as once devoted to trial prep, there is little doubt the investment will lead to better results.
What are the implications of this emphasis on ADR in Michigan? In 2014, the State Bar of Michigan recently sponsored a forum, "The Future of Legal Services." In the December 2014 issue of the State Bar Journal, State Bar President Thomas Rombach followed up with a list of issues discussed: "...unbundled legal services, attorney licensing and regulatory reforms, legal education reforms, alternative billing methods, electronic filing, limited license legal technicians, pro se litigation...." State Bar Journal, December 2014, Volume 93, Number 12, pages 14-15. The "Vanishing American Trial" didn't make the list. As a mediator and former trial lawyer, I believe that’s a mistake.
In Michigan, the statistical picture is little different: the percentage of cases going to trial is only 1.2%. A successful litigator with 20 years experience told me recently he has tried four cases in his entire career. "I've also arbitrated four cases," he added. "Do they count?"
When trial lawyers no longer try cases, there are consequences and implications for the bar and the public. The atrophy of trial experience deserves to be part of any "Future of Legal Services" discussion.
1. Declining experience evaluating cases for settlement: During my time at ICLE, the Institute of Continuing Legal Education, I met insurance executives concerned about how to value cases for settlement when the current crop of experienced trial lawyers retires. Newer, younger lawyers are fine litigators they think, but without trial experience, how can they accurately evaluate risk and make good judgments about resolution? At least one executive explored whether trial advocacy workshops might serve as an adequate substitute. The answer: “probably not".
2. Lawyer exclusion from the valuation process: In the early days of my practice both as trial lawyer and as mediator, it was rare to run across defense counsel with only a limited role in the valuation process. Quite the contrary. Defense attorneys were crucial partners in evaluating their cases for settlement. Today, the opposite seems true, particularly with insured claims or sophisticated corporate defendants. Indeed, lawyers today often tell me their clients aren't especially interested in hearing their recommendations. In increasing numbers of cases, defense counsel arrive at the mediation table unaware of their own side's bottom line. The claim managers explain it this way: "I have way more experience in trial than my local counsel. Why would I ask for his advice?"
3. Unreasonable positions in settlement negotiations: Insurance executives are right to be concerned about a growing lack of trial experience among the attorneys they retain. Too often unreasonable settlement proposals are placed on the table because the cases were not evaluated appropriately. Unreasonable settlement proposals based on inexperienced evaluation of risk can have a toxic impact on resolution.
4. Unsound advice to clients: When I was in practice and representing clients, I tracked the number of cases I investigated versus the number of cases I accepted for litigation. The ratio hovered around 75:1. That's a lot of chaff to find the wheat. As a contingency fee lawyer, I limited my practice to cases I considered meritorious. Nonetheless, it was always clear to me which cases carried substantial risk; risk I was able to recognize after years of presenting claims to juries. Based on experience, I was able to explain to potential clients why proceeding with litigation was or was not a good investment of their time and energy. With little or no experience trying cases, plaintiff attorneys are hard pressed to distinguish solid cases from weak ones. A similar problem is occurring equally on the other side. For the defense, lack of trial experience has a powerful impact on when or whether to encourage clients to seek early resolution.
5. Weak performance in trial: Cases are won and lost mostly on their facts. Lawyering nonetheless can make a big difference. When one of the lawyers is an experienced trial lawyer and the other is not, the result can be explosive: close cases are more often won by the client with the experienced trial lawyer; and the damage award is more likely to be out of proportion to the evidence.
This is a new era, an era of "The Vanishing American Trial." The loss of trial experience is as much a challenge to the profession in the 21st Century as technology, regulation, unauthorized practice, electronic filing and the like. There are serious consequences for a public seeking access to justice when few lawyers have broad trial experience. The challenge warrants careful consideration and vision about where the practice is going. The “Vanishing American Trial” should be part of any discussion addressing the future of our profession.