The plaintiff bar complains that civil justice is under siege, and many blame the problem on mediation
Voices have raised the alarm. “Our rights are under siege.” “The Seventh Amendment right to a civil jury trial is under attack!” “How will new generations of attorneys develop litigation skills when ever-decreasing percentages of cases go to trial?” “Alternative dispute resolution (ADR) is short-circuiting justice, and citizens are losing the most direct path to participating in government matters.”
Imagine the scene… a shadowy chamber with a mysterious figure at the head of a table facilitating agreements that have no review process or public oversight. You can practically smell the candles and hear the low incantations as the institution of American Justice is being clandestinely subverted. Or, at least, that is what some in the legal profession would have you believe.
First, take a look at that right codified in the Seventh Amendment to the United States Constitution. “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
That seems pretty simple. You have a right to a jury trial in a civil case with a value of over $20, and facts found by the jury will not be re-examined.
Twenty dollars? Really? Yes, really. In 1989, Professor Phillip Hamburger opined in the Michigan Law Review that the $20 clause was intended to become obsolete by inflation, making more cases eligible to be tried. While the jury trial provision of the amendment has never been incorporated, it is largely complied with, voluntarily, by the states. The $20 figure is rendered a matter only of historical interest by jurisdictional amounts at the federal and state levels.
Second, now that the stage has been set, it is time to take a look at what is really going on with the right to a civil jury trial. Statistics are often cited decrying the decline in jury trials. With notable exceptions, the people pursuing the profession of law are often those more comfortable with words than with numbers. Statistics, as we know, can be manipulated to fit an agenda.
In 2006, Kirk W. Schuler, writing for the Drake Law Review (ADR’s Biggest Compromise), provided a table (derived from multiple sources) illustrating a consistent decrease in the percentage of cases decided by a jury from 4.9 percent in 1960 to 1.0 percent in 2005. Calculating the raw numbers of cases in this table that are decided by juries, shows a steady increase from 1960 to 1990 and then a decrease. What does this data mean? The answer seems to lie in which data is examined. Do the statistics indicate an attack on the Seventh Amendment? It bears further consideration.
Third, consider the coming generations of attorneys that are not being provided the opportunity to gain litigation experience. In 2008, the Yale Law School Legal Scholarship Repository published An Overview of the Legal Profession in the United States, How That Profession Recently Has Been Changing, and Its Future Prospects. The overview states that “Demand for most kinds of legal services has been increasing….” The overview goes on to observe that law firms’ share of the legal services market seems likely to decline due to competition from non-lawyers, but also notes the market for legal services in the United States has always been competitive. Additionally, the overview claims “the rate of lawyer dropout from the profession appears to have increased considerably.” In a demanding profession that is largely self-regulating, the blame for fewer opportunities for generations of attorneys to gain experience cannot rest solely on the growth of ADR and particularly that of mediation.
Is mediation a bypass of the legal system?
Fourth, what about our system of justice? Is mediation providing a way to bypass the legal system and providing private justice for those with the means, or the inside information? Well, that may be happening in some instances. But what if one turns the issue around and views it from the other side? What about all the cases that would languish, unheard, and the caseloads that would crush already overburdened jurists? What about the plaintiffs and defendants who just want their issues resolved so they can get on with the important business of living their lives?
Without the option for mediation or other ADR processes the backlog to trial would grow exponentially. When a buyer and a builder have a disagreement over the amount of paver-patio that extends from the backdoor (was it agreed to be 10 feet or seven and a half?) everyone would want resolution. Most parties would agree that such a case would be better resolved as quickly as possible so that the builder can get on with developing properties, and the homeowner can enjoy sunsets from the paver-patio. Such a case does not benefit from sitting in a backlog, and no precedents are going to be set. Delay will often benefit one party, but prove an injustice to the other. In this example, the builder may continue building and developing, but the homeowners are left with a too-short patio that irritates them every time they let the dog out. In the end, the disputed two and a half feet of pavers may not be the real issue. A mediation could result in a satisfactory, low cost solution that may even assuage the ego needs of both parties. Seems like justice. And if the proceedings and result are confidential, as is the case with many mediations and other forms of ADRs, the builder may be happy to have a solution that avoids trial by social media.
In the Spring 2012 issue of Litigation, Associate Editor Steven J. Miller contributed an interview with two federal judges titled, Judicial Mediation: Two Judges’ Philosophies. In the interview, Judge Dan Aron Polster noted “cases arise out of an existing relationship,” and described the need to reframe the relationship, or to terminate it in a fair way. Judge Jeremiah J. McCarthy said that he tries “to keep an open mind that mediation is not just about reaching the once-and-for-all settlement and instead might, for example, be about crafting a methodology for settlement.”
Judge Polster also contrasted the trial experience, in which, a litigant usually only gets the opportunity to speak when spoken to, with mediation, where a litigant can tell a story and be heard. The two judges also noted that the judicial system would break down if every case went to trial, and that it is often preferable to get a today-oriented result from mediation than to let the appellate process run its course.
Fifth, mediation happens without juries. That is not to say that parties involved in civil suits are not entitled to jury trials. Parties can and do exercise the right to jury trials. There are suits that will establish new law or address issues of public safety. Undoubtedly some of those suits are a correct fit for the jury trial process and the public engagement, and potential for review and appeal that comes with it.
Jury duty does provide an opportunity for citizens to directly participate in government. Anecdotally, citizens resist jury duty, but if they do execute such duty they come away satisfied with the experience. But societal norms have changed since our founding fathers envisioned citizen participation in juries.
The United States is not the agrarian society that it was in the late 18th and early 19th centuries. Most people work in positions that require them to be present each workday. Few employers pay employees their normal salary when they have jury duty, and jury per diem rates can be laughable, often covering little more than parking costs near a court house. Reform of jury obligations would change the perceptions of many people involved, but in an era when many think government should be run as a business, it is often overlooked that justice is not assessed with a profit and loss sheet.
The legal topography of America is as varied as that of the country itself. A particular process or approach may fit one case and not another. Choices are available, and we are not dividing a pie. There is not a finite number of solutions to legal issues. Trials are appropriate for significant cases that involve concerns of the public. Mediation can offer a variety of options that are appropriate for a wide variety of cases, and while many approaches offer confidentiality, they are not secret rites done in the dark. Future generations of attorneys and judges are not being diverted. Opportunities exist. Creativity beckons. Examine the alternatives.
David Gordon is the manager of the Judicial Education Unit of the Nevada Supreme Court/Administrative Office of the Courts. He has completed the Civil Mediation course at The National Judicial College and served as a faculty assistant for that course. Mr. Gordon is a former naval officer and military linguist.
2017 by the author.
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