I interviewed a lawyer today who litigates property disputes in the High Court in London. At least that's what he thought he ought to be doing.
His problem is that hardly any cases get to trial: they all settle before. Courts and the rules of civil procedure are pushing cases into the hands of alternative dispute resolution, mainly mediation. The two procedures couldn't be more different. In court the two sides present their cases, their version of truth, then let a judge determine which of them should win. Essentially, it is like a football match. It allows lawyers to be tough. Everyone likes the closing speeches given to juries we see on The Practice or Ally McBeal. They are impassioned, fluent, literate, and emotive. Of course, in real life closing speeches are ponderous, dull, detailed, and inarticulate. The image beats reality hands down. The OJ Simpson trial was perhaps an exception when OJ's lawyer, the late Johnny Cochran, told the jury: "If the glove don't fit, you must acquit." And they did.
Mediation is not like this at all. It's not about winning. It's about the meeting of minds, continuing the relationship, not beating up your opponent, not crushing his nuts. For some lawyers this is hard to take; it's effete. But if they want to remain litigators, then they must adapt. As my interviewee said, "We have become facilitators for mediation! I didn't become a lawyer to facilitate, I want to litigate." But since mediation is not about fighting, different methods are necessary. The ability to listen, not to get personal, not to fight dirty, the capability to compromise and see how the relationship may continue, not be killed. Mediation requires wholly different skills to litigation and some lawyers can't adjust, they can't let go of habitual ways of doing things. I know from research I've done that it takes approximately a generation to succeed in changing the legal profession profoundly. Because that is how long it will take for the new people to percolate up.
My informant told me that although his workload in his law firm is high--disputes are rising--he's lucky if one case goes to trial in two years. All the others settle in mediation. If a lawyer refuses to take a case to mediation and goes to trial, the judge has the power to penalize him through costs' sanctions.
Is it better for society for this to happen? Maybe...or not. Mediation doesn't give a decision, and sometimes we need to have issues determined properly. Was the war in Iraq legal or not? As much as Blair and Bush waffle on the topic, it needs a dispositive answer. If an asylum seeker is about to be thrown out of the country by an obstinate government minister, the court can stop the illegality and make the minister reconsider.There's no mediation there, nor could there be. Take a dispute between neighbours (very common--think of leylandii) and litigating in court isn't going to foster harmony. In most cases both will go away miserable, even the putative winner. Mediation is probably the better course there, since each could come to understand the other and live more comfortably.
An American legal scholar, Karl Llewellyn, talked of law handling certain jobs in society. Dealing with troubles was one of them. It's just that we don't always need the full regalia of the law to achieve resolution. In his study of the Cheyenne with E. Adamson Hoebel, an anthropologist, he showed how societies without formal governments and states were able to regulate themselves and resolve disputes in the tribe in an inclusive and accommodating way. That isn't to say that groups like the Cheyenne didn't ostracize members if called for, if the offence was that egregious.