The judge belatedly got on the conference call and immediately lambasted my poor opposing counsel, who had asked for a brief extension to conduct discovery since his wife had just barely survived open-heart surgery. Ironically, the judge has taken more than six months to rule on a matter that, although simple, would have outsized effects on the efficiency and potential resolution of the lawsuit. For that transgression, she offered nothing but excuses: she was just too busy to pay attention to the case. I put the phone down and was even more disgusted than usual with our court system. Something must be done. If budgets will not allow for more judges and more clerks, we need to shrink the amount of cases clogging our courts. A simple solution presents itself: make mediation mandatory before a lawsuit can be filed.
Mediation is a non-binding process during which a trained mediator facilitates communication between the disputing parties to allow them to conjure up a solution with which all of them can live. If done correctly by a mediator who really understands how to work with people, it can be magical, life-altering even. Even if done incorrectly, there is little harm that can be done by trying to mediate a quarrel. Perhaps a day and a bit of money is wasted, but that pales in comparison to the years and bucketloads of cash that go out the door in a typical litigation. And even in the worst case, the time and money is not truly squandered. The mediating parties get a sense of their opponent’s case and temperament, as well as some insight from an independent third-party. Mediation need not resolve a conflict in order to be beneficial.
I envision a world where a person who feels wronged first calls a mediator, not a lawyer. The emotions and energies that typify the outset of a conflict can be brought to bear in its resolution, not in expanding the dispute. It is like working with steel: it is much easier to mold when molten ore than after it has cooled and hardened. Even if the dominant feeling is anger, the raw heat of it can allow transmogrification into other, more productive sentiments. If the parties give mediation a good-faith shot upfront, they may be surprised at how effective and cathartic it can be. It may save one or both sides from making a tremendous mistake with their time and money.
Almost all judges now require mediation at some point in a lawsuit. Unfortunately, this usually comes after discovery is commenced, the parties’ positions are set, and each side has spent so much money that they might as well go to trial. While resolution is still possible, the timing unnecessarily handicaps the chances of success. There is no good explanation for why mediation is not required at the outset of a lawsuit or, even better, before a lawsuit is filed. The only plausible explanation is that it will put the legal industrial complex on its back foot and rob litigation attorneys of an almost unbelievable level of income. But that is not a good reason, merely a reason.
It would be extremely simple to implement a pre-litigation mediation requirement. When filing a complaint and a civil case cover sheet, the courts could simply mandate that the plaintiff also file a certificate attesting that the parties attempted to resolve the matter in mediation. This would be signed by the mediator who tried to help the parties work through their issues.
This formal requirement would augment what is already being done via private contract. More and more industries are awakening to the benefits of mediation. The Colorado Real Estate Commission default purchase/sale contracts all contain a pre-litigation mediation requirement. Construction professionals are also heading in that direction. The most ripe frontier is homeowners’ associations, who could write mediation requirements into their governing documents. Combining a top-down court mandate with the grassroots support of key organizations will allow the drive to mediation to reach a crucial tipping point.
With a healthy percentage of their potential cases already addressed, our judges would be freed to devote more time and attention to those cases that truly need to be in litigation. Litigants will experience far higher levels of satisfaction with the legal process if they are able to receive timely justice instead of waiting months and years for judges to make routine decisions. Far from being a utopian dream, this future is eminently and quickly attainable. Spread the word that pre-litigation mediation can reform a broken system!