I used to think, back when I was a naive young law clerk, and even into my first few years of practice, that the legal system should provide a clear answer to most legal questions. If you were to read and research carefully any random motion, say for summary judgment, or listen to all the evidence and argument presented in any civil case, the vast majority of the time, the system should provide the same answer to each problem. Especially for pure questions of law. If we're not all getting the same answer, we probably just haven't analyzed the problem carefully enough.
I still think that predictability is an important ideal, but I no longer think the legal system will almost always provide the same, correct answer to any particular problem. Now I think of the solution to legal problems more as a series of probabilities. So many things can affect the outcome--the way a witness presents himself, the way a motion is written, the way the judge or jury is feeling when they hear a case, and the leeway that the law itself provides to decide a particular question one way or the other. The system seems a lot less predictable to me now than it used to years ago. But even if the system were completely predictable--even if it operated like a well-oiled machine that always generates the same result when the same information is input into it--the answer generated by that machine always is not always going to be satisfactory to the people affected by it.
Since we can't always predict the answer the legal system will generate, and since we don't always like the answer even when we can predict it, why not just remove law from the legal system entirely? I am not seriously suggesting that we do that, so don't panic. But what I have been trying to suggest in some recent posts is that the legal system has become so complicated and so unpredictable, and that is sometimes generates such unpalatable results, that it has already sparked a counter-movement that has attempted to simplify procedures and remove large chunks of law from the legal system. First arbitration held out the promise that parties could design their own rules and procedures, then mediation offered the hope of allowing parties to reach resolution by agreement, so as to avoid the cost, uncertainty, and possibly erroneous outcomes inherent in asking a neutral to impose a solution.
To make clear how different mediation is from court, I sometimes start off by telling mediation participants that there are no rules. That to me sounds more refreshing than a more conventional opening explanation of the rules (because of course there are a few rules). By suggesting that we are free from rules, I try to expand the participants' focus beyond the laws and rules that are used to decide cases, so that all aspects of a dispute can be addressed. That is Mediation 101, the idea that we need to identify parties' interests, not just their legal claims; and that we need to design creative strategies to satisfy those interests to the extent possible, not just adjudicate which side is right and which side is wrong according to some set of abstract principles and rules.
Mediation should do more than serve as a cheap mirror of the litigation process. Sometimes that approach works, but it seems like cheating. A quick and dirty calculation of the value of a case might be all that is required to settle some cases, but does not help us realize the full potential of mediation to address concerns that the legal system does not address, or help us design an even better outcome than an approximation of the result the court would find.
We should also try to do more than just oversee a structured negotiation process. If all we are doing in mediation is helping people bargain their way from two opposing points to a third point in between, that might make some people question the legitimacy of a system that leaves the outcome to the negotiating skills of the parties, rather than either the merits of their positions, or an assessment of their interests. (Now people who can afford it hire ace trial lawyers to give them better odds of prevailing at trial. As mediation becomes more prevalent, we can expect participants to hire famous negotiators to "win" the negotiation. The system will still carry a taint of illegitimacy, however, if the outcome is perceived as determined by the parties' choice of representative.) To create an alternative structure for dispute resolution that people accept as fair, people should understand that it is not quite the same as what you do when you want to buy a new car or a rug.
What that might mean is creating an alternative way of evaluating the success of any dispute resolution process. That means we need to look beyond whether the system achieves a result that approximates what the law would dictate. We also need to view the dispute resolution process as more than a simple tug of war between two opposing points of view. Instead, dispute resolution should aim to bring more satisfaction to the parties themselves, as well as any affected observer, than the legal system can provide. That does not require us to jettison our abstract principles of justice, because we still need those to help determine whether we think a result is fair. But we also need to look beyond the solutions that are available in court, and we need to consider matters beyond what a court would consider relevant.
In other words, one goal of a third stage justice system is to free parties from being forced to present their cases in a way best calculated to lead the judge or jury or whomever to decide in their favor based on limited choices of what is relevant or what remedies are available. Instead the parties should be deciding for themselves on the criteria for measuring the success of the process, as well as the information they want each other to consider. The parties should be trying to obtain things from each other beyond the remedies they could obtain in court, rather than just settling for a portion of what they think they would be entitled to in court. Whether mediation can better serve the parties' and society's needs thus depends not only whether mediation is a better mousetrap than court (i.e., cheaper, faster, cleaner), but on whether it can do even more than just catch mice.
Joseph C. Markowitz has over 30 years of experience as a business trial lawyer. He has represented clients ranging from individuals and small businesses to Fortune 500 corporations. He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both in New York then in Los Angeles, then returned to practicing with a small firm and on his own. In addition to general commercial litigation, Mr. Markowitz has expertise in intellectual property, employment law, entertainment law, real estate, and bankruptcy litigation. Mr. Markowitz has managed his own firm since 1994. Mr. Markowitz was trained as a mediator more than 15 years ago, and has conducted a substantial number of mediations as a member of the Mediation Panels in the Los Angeles County Superior Court, the District Court and Bankruptcy Court in the Central District of California, as well as private mediations. He has served since 2010 as a board member of the Southern California Mediation Association.