Disputes are part of our culture. They are frequently the driving force behind the decision making process, and the reason rights are often wronged. The primary mechanism that allows us to solve our disputes has been, by default, court intervention. This structure, often known as the civil justice system, is a procedural device created by government as the final option to solve our disputes.
The traditional model of court intervention is an adversary system in which lawyers are trained to vigorously pursue their clients’ rights in order to win disputes. At the same time, lawyers have a vested interest in maintaining the traditions of the civil justice system. Unfortunately, the costs associated with maintaining the system have become prohibitive even for those who have had easy access to it until now.
What is clearly undisputed is that the average person cannot afford to participate in the civil justice system on the same level as corporations who frequent the system. Not surprisingly, continued reliance on the civil justice system by corporations has catapulted them into the same financial straightjacket experienced by individuals. This evolution has caused corporations and individuals involved in disputes to realize that the future requires limited dependence on traditional court intervention to solve disputes.
Consider the recent Report of the Commission on the Future of the California Courts. In its vision, the courts must dispense multidimensional justice - a broad range of dispute resolution processes, not just jury trials. Private dispute resolution providers would be available to meet the special needs of the disputants. The private and public sectors would work together to offer a wide variety of dispute resolution options.
That future is now. Corporations like DuPont Chemical recently announced that it was cutting the number of law firms to which it referred cases from 400 to 50, despite an increase in the number of cases filed against the company. The 50 primary firms will be required to completely automate their systems to avoid the huge duplication of effort which has existed in the legal industry.
While economics is certainly a major factor in the current changes to the civil justice system, it is by no means the only factor. For example, courts congested with garden variety fender benders and a backlog of criminal cases are typically overburdened, denying easy access to civil litigants. The most obvious factor contributing to these changes is the realization that only 3% of all disputes which enter the civil justice system ever actually get to trial. Incredibly, most lawyers spend their time preparing for trial but have never tried a case! Most cases are settled informally on the eve of trial or are quietly dismissed.
For those who have mourned the demise of the civil justice system, particularly those who advocate trial by jury– fear not. The system has survived. It has taken on a new complexion, focusing on achieving the objectives of disputing parties in an efficient manner. To do this, the spotlight has been placed on the multiple options available for resolving disputes, rather than on the procedural default associated with court intervention.
This change has been predictable to those who have paid attention. A system that required one side to lose the dispute each time, coupled with winners who now realize the financial cost of winning, has created a proactive constituency. This new constituency favors a menu of creative procedures that are available to achieve the goals of the disputing parties.
by Jeffrey Krivis
This article appeared in The Corporate Counsellor, October, 1994. Also available online at http://www.firstmediation.com/resources/?p=16.