Comments: The Satisfactions Of Litigation

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Steven Vogl, Exeter NH  svogl@nemediation.com     06/29/06
When I saw the title of your article, I said to myself, "finally, I can have something to show my non-lawyer mediator collegues the specific reasons why litigation sometimes does have value to clients". And, while there is, of course, value to the law, I didn't see the benefits to the litigation model using the adversarial method listed in your article. You stated that the 5 benefits are: a sense of vindication, a sense of empowerment, a desire to be heard publicly, a desire for the particular dispute to receive the stamp of legitimacy, and the desire not only that justice be done but that it “be manifestly seen to be done.” I'd like to suggest an alternative perception that: people would prefer understanding from the other party than vindication. An apology, or even an acknowlegement from the other side removes any need to fight for the court's approbation. Empowerment after wining a trial may last until the door closes behind the winner on the way out of the court house. If the award is for monetary damages, he may collect and thereby feel empowered. If damage is done then restitution, by all means is deserved. But anyone who has had to live by an order of the court that carries into the future knows that it is more of a tether that can jerk those attached without notice and in unpredictable ways. That's not the definition of empowerment. The desire to be heard publicly is again trumped by the desire to be heard by the other party. I don't wonder how many cases would go to trial where the parties came to an understanding, even without an agreement. There may be damages to litigate, though there would be no need for public chest thumping if the parties had a chance to exchange words that allowed for the acknowledgment of mutual contribution. Again, what stamp of legitimacy would be needed by one party if their opposition were to acknowledge an acceptable contribution? Justice manifestly seen to be done does not cause the 96% of the settled cases to continue on into court just so a sense of justice can be seen to be done. In fact, the settlement usually includes a confidentiality clause that prevents just that public seeing. The benefits of the law are innumerable. And, resolution, no matter how it is acheived is welcome. But the time has come for the child to point and say, "The Emperor has no clothes". As you so appropriately point out, Chief Justice Burger said: "For many claims, trials by adversarial contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people.” A neighbor of yours, Janet Weinstein, Professor at California Western School of Law said: "The adversary system is not inviolate; there is nothing inherent in our tradition which demands its use, particularly in noncriminal matters. We must look with new eyes to consider what kind of system we would design to deal with these kind of problems if we were not constricted in vision by the usurpation of this area by the adversarial legal system." We must not bestow on the legal process the benefits that are more rightly bestowed on the rule of law. We can have a better system and a more mediative approach is waiting in the wings to offer some suggestions when people can hear them.