What happens in the majority of contested cases reflects the evolution of the court system as a whole from an emphasis on preparing for trial to an emphasis on cooperation and settlement. Years ago at initial status conferences judges tended to spend most of their time quizzing the parties about expected discovery disputes, contested motions, and the time needed for trial. This still happens, but consideration of settlement now features much more prominently in the discussion. In addition, changes in court rules now favor the negotiated resolution of most issues that arise in the course of pre-trial proceedings. Parties are required to meet and confer prior to filing nearly any motion, especially discovery disputes. Many courts require the use of an alternative dispute resolution process at some point before trial. Sometimes it seems as though judges spend more of their time discouraging the use of litigation than they do actually adjudicating cases. They know they cannot hope to decide more than a small fraction of the contested matters before them, so they encourage most disputants to resolve their cases consensually. The courts once saw their job as adjudicating every matter that came before them, even though they knew that most would settle on their own. Now the courts are much more overtly involved in the business of resolving disputes informally.
“From litigation to conflict resolution” also describes my own evolution in the legal profession. I was initially trained in the art of aggressive litigation, believing that the process of contesting every issue large or small that arises in the course of a lawsuit was the best way of resolving the dispute itself. A number of years in, noticing that the majority of my cases were eventually resolved by negotiated agreement, I started to wonder if there wasn’t a better way to get to that result. It began to occur to me that fighting about everything that comes up in the course of litigation process might actually impede the progress of resolving the case. Maybe some of the efforts involved in arguing about discovery and filing motions are wasteful, whether or not the case goes to trial. I started to learn about mediation as that field came into its own in the 1990’s, and started to apply the lessons and skills of mediation to my litigation practice. As a result, where I used to relish discovery motions; now I try to avoid them. I used to treat opposing counsel as the enemy; now I see them as a partner in the process of resolving a dispute. I used to describe myself a litigator; now I associate the term “litigation” with a lot of wasteful, destructive activity that doesn’t necessarily help get a dispute resolved, whether by trial or by settlement. Today I prefer to say that I practice conflict resolution in all of its various forms. That means promoting, rather than impeding, the process of settlement, which is how the vast majority of disputes have always been resolved. But it also means preparing for trial if necessary or appropriate, in a way that actually allows the case to be tried, instead of being forced to settle to avoid the overwhelming cost of litigation. It means recognizing that litigation is only one way of resolving a dispute, and probably not the best way in most cases. So I try to look at the process of resolving disputes process more holistically, and use all available tools for reaching resolution.