Tuesday, March 8, 2011

Does mediation threaten lawyers?

I remember hearing a lawyer joke about a father taking his son into his law practice, then going on the first extended vacation he had taken in many years. When he returned, the son said, "Great news, dad, I settled the Jarndyce case!"  Shocked, the father replied: "You fool! Don't you realize that case put you through law school? Now what do we do to keep the practice going?"

This joke came to mind when I read a guest post on Karl Bayer's Disputing blog about a planned lawyers' strike in Italy in response to a new statute mandating mediation prior to filing many kinds of civil cases. It seems these Italian lawyers might be worried about the prospect of seeing too many of their clients resolve their disputes without needing to hire a professional to file suit in court. Is fear of losing business the main motivating factor behind the lawyers' hostile reaction to this new law?

On second thought, I can think of some potentially legitimate reasons for concern about such a proposal. For one thing, making pre-filing mediation mandatory could be seen as contrary to the whole cooperative spirit of mediation.  For another, clients who decide to proceed to mediation without representation might be in danger of waiving rights of which they are unaware. And clients who are required to jump through a settlement hoop in advance of filing suit might also be wasting time and money, in cases in which they would obtain better results by dragging their adversary to court as quickly as possible. Thus, I would not automatically assume that attorneys are only thinking about their own pocketbooks in demonstrating against this new law. They might also be trying to serve their clients' best interests.

We should pay attention to lawyers' concerns for litigants' rights, and we should continue to strive to protect access to the justice system. At the same time, we probably should not worry too much about the potential threat to lawyers' incomes arising from increased reliance on mediation in the courts. I have confidence in the ability of trial lawyers to figure out ways of creating a need for their services in any justice system. I even think that expanding the use of mediation to settle cases, as opposed to the current practice of inducing settlements by means of the high cost of discovery and motion practice, should actually free trial lawyers to try more cases, and should help clients find more satisfaction with their attorneys' valuable services.  Or, as one trial lawyer, Abraham Lincoln, is supposed to have said:
Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.

(still from The Lincoln Lawyer)

2 comments:

Brent J. Rosenbaum said...

I firmly believe that mediation and litigation can co-exist without anyone running to Washington for a bailout. There will be appropriate times for both. I like to leave counsel with my take on what the "Three 'R's" of mediation contain: "Resolution Equals Repeat and Referral!" Perhaps unlike Lincoln we will all be so busy that we will have to forgo gong to the theatre!

Alice Melbourne said...

I would agree mediation is not a threat to the lawyers. There are things that could resolve outside the court and inside the trial court.

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