Civil litigation has become an arms race, says the Nobel Laureate economist Joseph E. Stiglitz in his book, The Price of Inequality (2012):
“The legal framework is supposed to make our economy more efficient by providing incentives for individuals and firms not to behave badly. But we have designed a legal system that is an arms race: the two protagonists work hard to out lawyer each other, which is to say outspend each other, since good and clever lawyers are expensive. The outcome is often less determined by the merits or issue than the depth of the pockets. In the process there is massive distortion of resources, not just in litigation but in the action taken to affect the outcome of litigation and to prevent litigation in the first place.”
Civil litigation is generally priced out of reach of most people, and even if a party can afford to litigate, 95% of cases are settled on the steps of the court through negotiation and not through adjudication.But the law and adjudication, in a fast moving and growingly complex world, are as important as ever to protect consumers, defend human rights and provide the certainty required for commercial relationships to thrive. It is after all the credible threat of adjudication that often brings parties, including the powerful to the negotiation or mediation table.
Mediation activists like Woza Mediation can be forgiven for over-simplifying the above extract from The Price of Inequality - that litigation (adjudication) is bad and mediation therefore good. But the legal profession cannot avoid its responsibility to reflect on the general disenchantment with litigation, and to explore ways to address the important concerns raised by Stiglitz and many others.
Mediation, a without prejudice and confidential process, is one of the ways the legal profession, can address the concerns raised about the adversarial, and sometimes destructive nature of litigation.
Litigation typically begins with a client paying a visit to an attorney seeking redress for some past event. The past event may be a motor vehicle accident or a business relationship that has gone sour. The attorney consults with the client to determine if the client has a remedy in law and advises her, the client accordingly. In a motor vehicle accident case the attorney considers the facts presented by the client to satisfy the attorney that the other driver had indeed been negligent. She also considers how much her client may claim. Self-respecting attorneys (the vast majority) do not readily take on cases without merit. If she believes her client has a case, she requests payment of a deposit to cover the initial costs of litigation and sends an attorney's letter to the other driver, claiming damages.
The attorney’s letter, which one may describe as an ultimatum – pay or we sue – is typically the first step of many in the litigation process, a process that may be a much longer and more expensive journey than anticipated by the client. It is an ultimatum that gives the driver of the other motor vehicle (only) two choices: fight back or surrender. Not surprisingly he pays a visit to his attorney who writes back fighting fire with fire. This is the beginning of an adversarial process from which it is difficult for both parties, to retreat without facing humiliation and defeat.
Litigation may be compared to going on a train journey. The train from Fish Hoek leaves at 8h45 and the estimated time of arrival in Cape Town is 9h45. At Fish Hoek Station the attorney sends a letter of demand to the driver of the other motor vehicle. At Kalk Bay station the other driver’s attorney fires back a letter. At St James Station a summons is issued and served. At Muizenberg Station the other driver’s attorney files a plea and so the process weaves its way from station to station for further procedural and tactical skirmishes. Finally it reaches Cape Town Station where the parties find themselves bewildered, exhausted and exasperated on the steps of the court.
Their attorneys greet each other with friendliness that beggar’s belief, they talk about settlement, the cost of further litigation, or a favourite one: the unpredictability of magistrates and judges in the new South Africa. By this time the clients have long forgotten how they exhorted their attorneys a year ago to teach the other driver a lesson and fight the good fight for them. Neuroscientists have neat explanations for the selective memory and overconfidence of the clients at Fish Hoek Station – material for a future article.
But imagine how different things could have been if the first attorney, instead of sending out an ultimatum, wrote a letter to the other driver, not only informing him of the instruction to pursue a claim for damages, but also that his client would prefer an amicable settlement of the case. Imagine if the attorney suggested that the parties attend mediation, before venturing to court.
Naturally not all clients are expected to be amenable to mediate their disputes, but if given the choice, they will be fully responsible for getting on the Fish Hoek train bound for Cape Town. Their attorneys will then be able to litigate without feeling responsible for the decisions of their clients to venture to court. Woza Mediation South Africa’s message is: “Be curious about the obvious. It’s were the best secrets hide.”
Litigation and adjudication are here to stay and the challenge is not to create a parallel universe called mediation, but to embed mediation in litigation as one of the important options available to resolve disputes.
It is time for the legal profession to help build that Mediation Station on the way to Cape Town.