Lawyers 25 years ago had a radical concept: Let’s see how many civil lawsuits we can settle in a week.
Settlement Week, as reported in the debut issue of the Indiana Lawyer in 1990, aimed to resolve more than 750 cases to relieve crowded court dockets in Marion County. More than 500 lawyers volunteered their time to help litigants mediate their disputes and try to come to some sort of resolution, with each case getting one hour.
“It’s changed the whole landscape of how we do things today,” said Michael Bishop, whose practice primarily involves mediation and arbitration. Bishop is the primary trainer for continuing mediation training for civil trial mediators for the Indiana Continuing Legal Education Forum. He also teaches public policy mediation at the Indiana University Robert H. McKinney School of Law.
Bishop was one of four members of the Indianapolis Bar Association’s Settlement Week Committee, along with attorneys Carolyn Small Grant and Mary Ann Oldham, and then-Marion Superior Judge Anthony Metz, who in 2012 retired as a judge for the U.S. District Bankruptcy Court for the Southern District of Indiana.
Settlement Week was the impetus for subsequent Indiana Supreme Court rule changes expressly favoring settlement of civil cases through mediation as well as the adoption of alternative dispute resolution rules, Bishop said. Those rules led to the end of Settlement Week.
Bishop tells his students these shifts all started with Settlement Week efforts in the 1980s.
“It just took off,” he said. “It just took off like crazy. Now it’s just part of our daily litigation practice and, frankly, we have a very mature ADR system in Indiana compared to other states.”
Bishop and Grant recalled that the earliest Settlement Weeks achieved resolution rates well above 90 percent – successes that quickly made an impression on the Supreme Court.
“It was a huge deal,” said Grant, who was an assistant U.S. attorney and president of the Indianapolis Bar Association Litigation Section in the early days of Settlement Week. She remembers civil courts closed for a week as 50 to 75 attorneys who had been trained to mediate disputes volunteered their time, whether it was for a few hours or a few days. “This was totally new.”
Few local bar organizations had created events such as this, Grant said, but she knew once similar strategies were pursued in Indianapolis that fundamental changes in civil litigation would follow.
“It was just so well-embraced that you could see a trend,” she said. “We were the Midwest version. There was something on the East Coast, something on the West Coast, but it happened to be the Indianapolis Bar Association that was pretty innovative.”
Nevertheless, some attorneys worried the Settlement Week wouldn’t work and might cost them clients.
“Early on there was some skepticism about it,” said Oldham, who was assistant corporation counsel for the city of Indianapolis at the dawn of Settlement Week. “Other attorneys made the argument that a happy client refers clients,” and that client might be happier if his or her dispute could be resolved short of going to court.
“Year after year, lawyers began to accept it as a viable alternative,” she said.
The settlements relieved backlogged courts and reduced the frequency of litigants settling their case on the courthouse steps, often after a jury had been called at public expense, only to be sent home when a last-minute deal was cut.
Those sorts of scenarios “became a burden on the courts and the clients and the lawyers,” Oldham said. “I think literally everybody has horror stories to tell.”
But Oldham said Settlement Week seemed to sometimes work best for the most difficult cases and clients. Because litigants were given an opportunity to express themselves before a neutral mediator, she explained, the format often allowed unexpected breakthroughs.
“Once they had their say, they were ready to settle down and talk business,” she said. “(Litigants) have got to be able to get the emotional feeling out, and being able to do that in front of a neutral person I think is what turned it and resulted in a higher number of settlements.”
Grant also knew early on that the program would be a success because she and other mediators were frequently complimented by litigants on both sides of a dispute for their work helping to guide cases to settlement.
A look at the disposition of civil lawsuits across Indiana since 1990 indicates the shift in policy to formally favor settlement has had the desired effect. Twenty-five years ago, there were 770 civil jury trials statewide seeking damages, but by 2013, that number had declined by more than two-thirds.
Too much of a good thing?
The rise of mediation and settlement of such cases also has given rise to concerns among some in the legal community that too many cases may be settling, perhaps to the detriment of the parties involved.
Indiana Court of Appeals Chief Judge Nancy Vaidik, who also is a trial advocacy scholar and expert, has heard those concerns but doesn’t share them.
“It’s good for the litigants if they can come to a mutual agreement,” Vaidik said, adding the push for a greater number of settlements over the past quarter-century has resulted in greater satisfaction for all parties. “Part of me says that rumors of the demise of the trial are overblown.”
Vaidik is not worried that fewer civil trials may impair lawyers’ trial skills. She sees an appetite for instruction among her students at Indiana University Maurer School of Law, which she said this semester is offering trial advocacy courses for students on at least seven educational tracks.
“All of those students are not going to be litigators,” she said. “It’s a good skill to have.”
While civil tort and civil plenary trials have plummeted in recent decades, jury trials in other kinds of matters have not. If people want to see trial advocacy skills, “I tell them to go in a family law court, go in a criminal court,” Vaidik said.
“There is a concern that if we get to the point that people are settling because they don’t have the skills to go to court, that would be problematic,” Vaidik said. “I don’t think that’s happening now, but that’s why trial advocacy is so important.”
Organizers of Settlement Week look back with fondness and a little wonder at the long-term impact of trying something new.
“It was an interesting process because it actually became part of the rules and the establishment, really,” Grant said.•