I’m pleased to announce that SHSU will offer a 40 Hour Mediation training this summer. This training’s schedule is geared for the professional who works during the day. Our training sessions are in the evenings and on the weekends.
This is a unique training, with time spent not only with me (!) but with a licensed psychologist.
The newest issue of the Texas Bar Journal covers the topic of the “vanishing jury trial.” This is a topic that has been on the minds of attorneys and judges for some time. It seems that those who write on the issue, for the most part, say that more civil jury trials are needed so that young attorneys can obtain trial experience, we need more trials in the system so the common law can continue to develop, and well, civil jury trials are just good things to have. I have tremendous respect for those who write on this subject.
But is there any proof to support their assertions?
It seems to me that the proof is in the pudding. As you know, I’m an advocate for mediation because of its inherent benefits. I’m also an advocate for our civil justice system, including civil jury trials. Some cases just need to be tried, and that’s okay. Go for it.
As I reflect on this topic, it seems to me that I’ve been looking at this issue of the vanishing civil jury trial from the wrong perspective. The fact that civil jury trials are decreasing means that the market–people–simply don’t view civil jury trials as important or necessary or economical as they once did.
Some who write about the vanishing civil jury trial will make the occasional remark that mediation is a reason for the vanishing civil jury trial. They view mediation as an obstacle to jury trials. These advocates of more civil jury trials want to limit people’s ability to use mediation or other alternatives to litigation, essentially saying “Let’s create systems that force people to go to trial, let’s limit their ability to conduct discovery, let’s limit the amount of time they have to present their case, and limit their ability to choose how to resolve their disputes.”
They are also saying that we need more civil trials so that advocates in mediation can properly inform their clients of the risks of going to trial–that the advocates need personal experience in a trial (maybe in an unrelated issue of law or fact?) so they can inform their client at mediation that going to trial may be risky.
I must admit I don’t understand this line of thinking. Do you know the risk of being in an automobile accident today with any degree of certainty? Have you been in an automobile accident? Well, then, maybe you shouldn’t drive because you don’t know the exact risks of having an accident.
Most good attorneys I know spend a lot of time on jury selection because they know that a jury’s make up can help determine a case’s outcome. If one wants information about what juries do, one can subscribe to one of the many fine jury reporting services to see how local juries view cases. You don’t have to subject yourself, and clients who don’t want to try cases, to trials so you can have unique, anecdotal evidence about a jury or whether one judge will allow in a particular piece of evidence or sustain a particular hearsay exception. An individual attorney’s experience with jury trials still presents a small sample size that may not be statistically reliable. I think the stronger argument is to study the jury reports to see what juries really do, with a larger sample size, instead of relying upon one’s own limited experiences. I know good mediators who subscribe to these jury reports and provide them to the parties and advocates during mediation.
If civil jury trials were more economical, faster, predictable, less stressful, improved opportunity costs, and ensured better justice, people (clients and attorneys) would be clamoring for them and lining up at the courthouse to file and try cases like people line up outside an Apple store for the release of a new iPad or iPhone.
But they aren’t, and it’s because they have an alternative.
People—clients and the professionals who are advising clients—want mediation and other alternatives to traditional litigation and the best evidence of this is that civil jury trials are “vanishing” (by the way, civil jury trials aren’t vanishing–it’s simply that there are fewer of them occurring now than in the past). According to the Texas Lawyer, filings are down 17% over the last 10 years.*
We’ve had jury trials in this country since its founding. Over 200 years of experience with civil jury trials. The fact that there are fewer civil jury trials, and that case filings are going down, can be suggestive of many things, but none of them are necessarily “positive” in the sense that the civil jury trial is the better mousetrap.
The bottom line is mediation (and other forms of non-litigation dispute resolution) works and people want to use mediation, more than using trials, to resolve their disputes.
One of the nice things about life is that we can improve. Disruptions happen. Those who made buggy whips saw their market disappear because of the development of the car. We no longer have 8-track tapes. Do we see people bemoan the vanishing buggy whip economy or bulky cartridges of music? I’m sure there are some, but we also know that cars and digital music are better products. The market’s spoken on these items.
We know that having a neutral third-party provides significant settlement advantages to parties to a dispute: the parties can save face, the neutral is the one who carries the bad news, the neutral can evaluate for those who want that, resolutions can be more creative than what’s available in a court, opportunity costs are improved, and some people simply appreciate the privacy mediation allows, compared to the public nature of a civil trial.
Forcing people to try civil cases that they don’t want to try isn’t the answer. The market—the people—have spoken. We don’t need to “fix” the system so they’ll want more of what only some of them want. The answer, and our energy, needs to be on training advocates and clients on how to negotiate better, how to create value, and perhaps most importantly, providing systems so that clients have the freedom to choose the manner that will help them best resolve their dispute.
Try the matters that need to be tried. Arbitrate the matters that need to be arbitrated. Mediate the matters that need to be mediated. Negotiate the matters that need to be negotiated. Focus on the client’s interests first.
Special thanks to my friend and colleague, John DeGroote for his insightful thoughts and help with this issue. But the opinions in this blog are mine. Don’t be upset with him. Similarly, the opinions in my blogs are mine and don’t represent anyone or any organization that I’m associated with.
* Note: Forbes reports today that McDonald’s sales are down 1.7% in February, marking nine months of decline. McDonald’s response isn’t to force people to eat at its restaurants. Instead, the company said ““McDonald’s current performance reflects the urgent need to evolve with today’s consumers, reset strategic priorities and restore business momentum.” McDonald’s is responding to the market. Should the civil justice system be any different?
Is arbitration constitutional? This is the question that Margaret E. Randels tackles in her article that was awarded an honorable mention in this year’s James B. Boskey Law Student Essay Contest on Dispute Resolution. This article is worth reading, because it asks a question that, perhaps, needs asking and that some may have taken for granted. The essence of Randels’ argument is that private arbitration agreements, often times entered into through contracts of adhesion, remove cases from constitutional courts and decisions are made by non-Article III judges.
Among the recommendations Randels makes is requiring mediation. Mediation, according to Randels, doesn’t implicate the same Article III issues as arbitration: there is no decision maker, the parties are reaching a settlement, instead of a judgment, and mediations don’t crowd the court’s docket.
What do you think? Are arbitrations constitutional?
Congratulations to Will Pryor on the publication of his book, A Short and Happy Guide to Mediation. Will is a mediator in Dallas, teaches at the SMU School of Law, will find you via Twitter, and has a lot of other neat accomplishments. I’m glad that writing a book is one of them. I’m looking forward to reading it. And thanks to John DeGroote for letting me know about the book.
Hat tip to Don Philbin and his wonderful blog, ADRToolbox, on this article about seven habits of highly effective litigators. The original article, published in the New Jersey Law Journal, identifies seven habits of, well, effective litigators. Habit number one? Mediate early. Why? Because an early mediation can mean that positions haven’t hardened and issues can be targeted. If these items aren’t taken care of early, the case can take on “a life of its own,” causing “excessive costs and barriers to constructive settlement.”
I’ve seen this…you wait to get all the depositions, documents, and discovery (Triple-D) and by the time you have all of that, a year or more has passed and the economics of the case make it difficult to settle.
By mediating early, you really are thinking about the client. You are thinking about the client’s financial bottom line and even if you don’t settle that day, the mediator can help the parties prepare an agreement on how to move forward–which depositions are really necessary, what documents need to be exchanged (and does a confidentiality agreement need to be made?) and can we limit the interrogatories to a few, or agree as to the admissibility of certain documents by stipulation?
As I advance more in my mediation career, I’m coming to the conclusion that a case that doesn’t settle at mediation isn’t a loss. It can be a victory–with the right mediator and parties–to take the next steps to have the dispute resolved formally and institutionally.
The Miami Herald reports that a mediated settlement agreement is no more. It seems that one of the parties told his daughter about the settlement and the daughter then talked about it on Facebook. The Third Court of Appeals “tossed out” an $80,000 settlement between Gulliver Preparatory School and Patrick Snay, its former headmaster. The opinion is here. Snay filed a motion to enforce the settlement agreement, but the court held that he violated a material term–the confidentiality term–and he cannot enforce the agreement. According to the court, Snay told his daughter about the terms of the agreement.
The confidentiality paragraph read:
13. Confidentiality. . . [T]he plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this
Agreement. . . A breach . . .will result in disgorgement of the Plaintiffs portion of the settlement Payments.
I’ve seen similar provisions in mediated settlement agreements, but I can’t say I’ve seen one where disgorgement was included as a remedy for violating a confidentiality provision.
Snay’s daughter posted on Facebook “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”
Interestingly, the trial court found that there was no breach. But the Florida Court of Appeals disagreed. Snay testified in a deposition that he told his daughter that the matter was “settled and we were happy with the results.”
What should Snay have said when asked about the litigation? The lawsuit was a matter of public record, as would be its dismissal. There was no discussion in the Court of Appeals’ opinion that Snay told his daughter the amount or terms of the settlement, just that the matter settled and Snay and his wife were happy with the results.
Perhaps the better practice is to outline in the mediated settlement agreement what can be said about the settlement. This is an approach that I’ve seen. Parties will agree to say that “the case has settled and we’re not allowed to talk about it” (the language is more formal than that, but you get the point). The fact that the case settled, at least in Texas, would likely be public record. Typically, one of the parties (and the mediator) would report, in writing, that the case had settled.
So did Snay really breach the confidentiality provision of the mediated settlement agreement? According to the Third Court of Appeals, yes. And that’s understandable. But saying “we’re happy with the settlement” is ambiguous. That doesn’t mean the party received a lot of money, or if a defendant, settled for less than defense costs. Here, I’m not sure that the public policy behind confidentiality is satisfied by the decision. But this gives all parties to a mediated settlement agreement notice: don’t say anything about the settlement agreement unless the agreement specifically outlines what can be said.