In my 32 years of California litigation, the most important and beneficial change is the development of formal civil mediation.
When I started in 1982, alternative procedures for resolution of judicial disputes – “ADR” courts now call them – were few and limited. In smaller cases, courts would often order or refer litigants to a summary, nonbinding arbitration for a few hours before a local lawyer. That procedure was too superficial and uncertain. As these arbitrations were not binding, anyone dissatisfied with the arbitrator’s ruling could simply wipe it out. That didn’t solve much.
Back then courts themselves conducted settlement conferences, and courts still do. However judicial settlement conferences have inherent limitations. Courts generally do not have the judges or other resources for the patient probing and cajoling that is often required to achieve settlement after months or years of courtroom battle. Equally important, judicial settlement conferences typically occur two to five weeks before trial, after the suit, its expenses and the emotions underlying it have been building for years. Minds may be focused by looming trial dates, but by then wallets and emotions may be drained.
For the rest of the article, click on the September-October issue of Big Times Magazine.