Historically our civilization has evolved primarily as successful hunters and gatherers. This evolution has been largely shaped by our environment, which gives us new resources and technology to continue our journey. But make no mistake about it, we are and will always be hunters and gatherers. It is embedded in our DNA. In this role our instincts require us to do what prior generations did, which is to take as much of the resources available that we can get at any given time because they might not be available in the future. This explains a lot about what has happened to cases that jump into early mediation without analyzing the readiness or actual value of a case. This piece will address those issues. The current thinking is that a lawsuit gets filed and the court encourages the parties to jump into mediated negotiations, whether or not discovery has taken place or legal issues have been sorted out through law and motion. This is contrary to our hunter and gatherer instinct and has contributed to some awkwardness on the part of trial lawyers engaged in early settlement discussions. While early negotiation does work in some instances and has been embraced institutionally in the past, it has led to a lethargic approach by some litigators to settlement. By this I mean that some folks simply show up and hope that their adversary comprehends the real value of their case without a proper exchange of data critical to an evaluation. This lethargy is due to what some commentators have described as the failure to consider the “intermediate steps between filing a case and mediating” that are critical to a successful mediated negotiation.
The conflict continuum
It is helpful to consider a dispute as a continuum of conflict where on one end is the “dispute” and the other “resolution.” In the middle are a number of signposts where the parties have real and substantive moments to reach closure. On the right end of the continuum is a jury trial, which is the most effective and elegant approach developed by our judicial system. It has succeeded for centuries and is the cornerstone for everything else that flows from the system. The real challenge with the jury trial is that it is only available for less than 3 percent of all cases. That means the civil justice system had to create other methods to deal with the 97 percent of cases that are in need of resolution. On the left end of the continuum is self-help. While it is not encouraged in the face of breaking the law, it is a common form of dispute resolution where parties take matters into their own hands. Early hunters and gatherers used this approach instinctively until it became illegal in most civilized countries. In the U.S. legal system, we see it used in zero-sum financial matters such as wage-and-hour class action cases where employers settle directly with their workforce (Chindarah v. Pick Up Stix, (2009) 171 Cal.App.4th 796) before the other side is aware of their action. It is also used in employment matters where offers of reemployment are offered, and in family matters, particularly where children are involved.