Mediation — The Present and the Future


Blog May 2013 Image

According to many, civil litigation has changed drastically and irreversibly.  Judge Mark W. Bennett, a U.S. district judge for the Northern District of Iowa, provides a satirical reflection on the American civil trial system in the Spring 2013 issue of Litigation, which celebrated the journal’s 40th anniversary this year.  (Obituary: the American Trial Lawyer, Born 1641-Died 20?? by Judge Mark W. Bennett, Litigation, Vol. 39, No. 2, Spring 2013, p.5.)

Judge Bennett writes:

The American trial lawyer (ATL), who, in innumerable ways, enhanced the lives of so many Americans and made the United States a fairer, healthier, safer, more egalitarian, and just nation, passed away recently.  Although a precise age is uncertain, ATL is believed to have been at least 371 years old at the time of death.

Kenneth P. Nolan, a senior editor of Litigation and partner at Speiser, Krause, Nolan & Granito in New York City, provides a similar perspective, referring to the civil trial as “a dinosaur,” an extinction that resulted in the “loss of the soul of the profession.”  (Sidebar: Mediation by Kenneth P. Nolan, Litigation, Vol. 39, No. 1, Winter 2013, p. 59.)

Bennett argues that the trial attorney has been replaced by the “American Litigator,” which he jokingly refers to as the “bastard child” of the American Trial Lawyer and Alternative Dispute Resolution [ADR].  (Bennett, supra.)  He believes ADR devices, such as mediation and arbitration, were the result of “a genetic mutation of the civil justice system.”  He explains that the civil jury trial began to vanish after the 1986 United States Supreme Court decisions in Celotex-Anderson-Matsushita,[1] along with its more recent decisions in Iqbal & Twombly.[2]  According to Bennett, a civil trial attorney’s “lifeblood was trying cases in the courtroom.”

Nolan agrees, noting that “[i]nstead of inspiring a lethargic jury, we sit in lifeless conference rooms and advocate before restrained, thoughtful mediators with nervous eyes.  We argue with all the passion of an accountant at tax time.  It’s business, everyday business, lacking the fervor of cross-examination, the thrill of closing argument.”  (Nolan, supra.)

Empirical data supports these perspectives.  In 1936, one fifth of all civil filings in federal court ended in trial, according to the Spring 2013 issue of The North Carolina State Bar Journal.  By 2002, that percentage dropped to 1.2% and, at the state level, only 0.6% of civil filings were resolved by a jury trial.  (“So How Much is My Case Worth?” by Shannon B. English, The North Carolina State Bar Journal, Vol. 18, No. 1, Spring 2013, p. 18. [3])

Author Shannon B. English, vice president of a litigation consulting firm in Winston-Salem, contends that the implementation of the Federal Rules of Civil Procedure and the courts’ interpretations thereof have significantly altered pretrial practice by requiring practitioners to focus on “information- gathering via the discovery process.”  (English, supra.)  Thus, she adds, “the facts of a case are typically uncovered and understood by all parties well in advance, thereby negating the need ‘to see what comes out at trial.’”  English’s analysis effectively explains the shift away from trying cases and toward settling them, described and examined by both Bennett and Nolan, supra.

For better or worse, all parties would agree: “Mediation is the present and the future.”  (Nolan, supra.)  It seems the days of regularly trying civil cases have come to an end, and, according to Nolan, it just may be time “for a proper Irish wake.”


[1] Known as “the trilogy,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) are viewed as a collective mandate for federal courts to embrace the use of summary judgment to dispose of cases prior to trial.

[2] Together, Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) heightened the pleading requirements for plaintiffs in federal court.

[3] The author references an article titled “The Disappearance of the Civil Trial in the United States,” Yale L.J. (Fall 2012), Yale Law School, Public Law Working Paper No. 256.

~Shannon Reid~

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