Wednesday, December 13

Vanishing Trials vs Legal Precedent

Diane Levin's wonderfully provocative post on Monday You say trials are vanishing like it's a bad thing raised the whole issue of vanishing court hearings.

I know what she means...when I go to a dinner party with other lawyers present, that's exactly the challenge I get - 'hey mate! what the heck are'ya doing with all our hearings?'... and as the red wine flows, the challenge (and the answer) is reframed...

But I guess my take on it is slightly different from Diane's.

I admit to being passionate about mediation. Ask anyone who knows me - it's almost get a life territory. You think this blog is for you? Sorry, its a pressure pot/steam thing.

So when I visited Washington DC last year and signed up for a tour of the Supreme Court I surprised myself.

When it was over and our little group dispersed, I sat down on those cold timeless steps upon which so much history has been made and, for the first time - the very first time, I had doubts.

The majesty of the law came upon me and mediation, for just a moment there on those steps, seemed unprincipled, backroom-ish and even a little dirty.

It was a small lapse that passed as I wandered off down to the Lincoln Memorial repeating a mantra that included words like peacemaker, healer, problem solver, conflict guide etc.

But you know what I think?

The people who count do get the big picture; they do understand the value of precedent over compromise where it's appropriate...

Take law blogger, Denise Howell's post that points to a NY Times article We're Google, So Sue Us that looked at this issue a while back. She reports that Michael Kwun, senior litigation counsel at Google, says that establishing a body of precedent is a priority for Google, especially as legal interpretations continue to evolve.

"If we don’t at least litigate to the point where we get rulings on the issues that matter to us, we're left with less clarity in the law"

...which is the important point when many of us look through a mediation lens at every problem - you know - have hammer therefore see nails...

For the latest in the continuing 'Vanishing Trial' conversation take a look at Prof. John Lande's recent 2006 article How Much Justice Can We Afford?: Defining the Courts' Roles and Deciding the Appropriate Number of Trials, Settlement Signals, and Other Elements Needed to Administer Justice

It's part of a Vanishing Trial Symposium (this is a great resource on this issue)


1 Shifting the Focus From the Myth of “The Vanishing Trial” to Complex Conflict Management Systems, or I Learned Almost Everything I Need to Know About Conflict Resolution From Marc Galanter
2 Replace 'The Vanishing Trial' with More Helpful Myths


Anonymous said...

The big picture is important and mediation is not for every dispute but most, indeed the vast majority, of legal disputes do not make new law. Most cases settle before trial anyway.

I suggest the main cause of the so-called "vanishing" trial is the incredible cost of litigation not the use of mediation or other ADR processes.

Unless you are a large corporation or institutional litigant or an individual that can obtain legal aid or is wealthy, most doors of the fables "multi-door courthouse" are closed.

Geoff Sharp said...

Colm, thanks for the insightful comment