It was so easy when I embarked upon a litigation career in 1978. In that bygone era, many clients expected and were willing to pay for costly and aggressive litigation tactics, and it was not unusual for litigators to take two or more cases to trial each year. Litigation budgets were still in the future – a cost-benefit analysis for continued litigation paled in importance to the principle that needed to be established at a trial, ADR was virtually unknown and seen as only for the “weak of heart,” and trial courts had not yet adopted effective case management techniques, judicial “evidence-based practices” or imposed staged and proportionate discovery limitations. Fast forward 40 years, and we see a radically different landscape.
Two fascinating follow-up studies, one conducted by the Supreme Court Administrative Office (SCAO), and another by the ABA Section on Alternative Dispute Resolution, provide significant insights on the mediation process and the timing of ADR that mediators and litigators should consider. Here we discuss the initial research as well as the follow-up studies.
At the urging of the Michigan Supreme Court, the State Bar of Michigan established a task force to evaluate and propose any recommended changes in discovery practices in the Michigan trial courts. In 2016, as part of the Bar’s 21st Century Task Force final report, the Board included the following amongst its goals:
Modify court rules to reduce the expense and burden of civil discovery.
Research whether pretrial discovery and practice should be tailored on a case-by-case basis, taking into consideration the parties’ financial resources and other relevant factors.
Modify court rules and administrative procedure to better utilize mediation and alternative dispute resolution (ADR).
Promote business process analysis, problem-solving court principles, and best practices to courts, law firms, legal aid programs, and other justice system entities.
Promote the use of properly trained mediators or special masters to expedite the discovery process.
With increasing frequency (often during a mediation) we hear the refrains: “There are just some people I can’t talk to” or “They just don’t listen to reason.” The polarization of society into the “right” and “wrong” camps is undoubtedly a contributory factor to the reticence to engage in difficult but critically important conversations.
While a fascinating social development, the inability to have productive difficult conversations is all too often self-defeating and counterproductive to important negotiations, including those that take place during mediations. A sine qua non of many successful and mutually beneficial business negotiations is truly engaging in positive conflict resolution through knowing how to have difficult conversations effectively.
Mea culpa, but as a traditionalist, "Online Dispute Resolution" (ODR) had absolutely no appeal to me. But could it be that traditionally trained mediators have missed the boat, and there may be a class of mediations that lends itself to some form of ODR either in whole or in part? John F. Kennedy may have said it best, “Change is the law of life. And those who look only to the past or present are certain to miss the future.”
