In his article, “The Disappearance of Civil Trial in the United States,” Yale Law School professor John H. Langbein explored the factors leading to civil trials having all but “vanished.” (122 Yale L.J. 5 22, December 2012). He concluded that the largest single cause of the decline in the number of jury trials was the robust and extensive fact discovery promoted, if not mandated, by the adoption of the Federal Rules of Civil Procedure. Prior to the Federal Rules, the “pleading” was the core component of pre-trial procedure, and the major function of pleadings was to shape and narrow the issues, which issues would then be presented to a jury to determine the facts and apply the law thereto. The Federal Rules altered this dynamic, Langbein wrote.
“The signature reform of the Federal Rules was to shift pretrial procedure from pleadings to discovery. A new system of civil procedure emerged, centered on the discovery of documents and the sworn depositions of parties and witnesses. Related innovations, the pretrial conference and summary judgment, reinforced the substitution of discovery for trial. This new procedure system has overcome the investigation deficit that so afflicted common law procedure, enabling almost all cases to be settled or dismissed without trial. Pretrial procedure has become nontrial procedure by making trial obsolete.” Langbein at 122 Yale L.J. pg. 522.
Studies showed that more trials resulted because of a disagreement over facts than over disagreements as to the law. The conclusion that disputes were settled when facts were established has a profound and obvious impact for advocates and parties involved in mediation.
The mediation process, to be effective, must allow for a replication of the core reason 99 percent of cases settled without a trial; both parties were basing judgments and applying the law to a revealed background of facts, and settlements resulted.
Contrary to this hypothesis, however, a recent trend in many jurisdictions leads advocates to request — or demand — that the mediation process not involve a joint exchange of positions, either as to facts or law. The growing reluctance of many mediation participants to engage in even a limited examination and joint discussion of underlying facts and positions has resulted in an increasing percentage of matters not being resolved in mediation.
The very dynamic that Professor Langbein and many other legal scholars cite as the main reason for the dramatic decrease in the number of trials and increase in settlements — that is, the fact that discovery tools put disputants on the same page as to facts — is missing in a mediation process where no or little exchange of facts and positions occurs.
An effective mediation process includes a limited, focused and “user-friendly” exchange of positions. The extent and nature of any joint exchange of facts and positions in a mediation will depend on many factors, including the stage of the dispute and the amount, if any, of factual discovery.
It is not advocated that parties and mediators resort to the formal presentations, the PowerPoints and the alternating opening statements and responses that often defined the early mediation process after the adoption of the Indiana ADR rules in 1992. In some cases, however, the pendulum has swung too far from this model to the point where some advocates want little or no interaction in the mediation. This has resulted, in some instances, in the parties starting and staying in private caucus, with the mediator expected to shuttle back and forth explaining, if not advocating, that party’s position to the other side.
An effective mediation process avoids both of these extremes; it does not involve an exchange in joint session of detailed trial-like presentations, nor does it seal off the parties from each other and avoid any interaction.
Any exchange of positions, any advocacy in a mediation, should be limited, focused and “user-friendly.” The “user- friendly” component is critical in that mediation, while inserted into an adversarial process, should itself have more characteristics of a conciliatory and mutual problem-solving approach.
While mediations should never devolve into a bitter tit-for-tat series of exchanges, nor should parties or counsel expect to be able to settle matters without some exchange to ensure everyone is on the same factual page.
The mediation process must be flexible; if the mediation is scheduled after most of the discovery is completed, there is less need for interaction or exchange.
If the parties, however, are mediating before any significant discovery is conducted, then advocates and parties may need to tolerate and participate with a laser-like focus on key facts and circumstances.
The need for limited and focused exchange of some key information is informed and underscored by the following core dynamic set forth in Professor Langbein’s article:
“[T]he drafters of the Federal Rules devised a system of discovery that was meant largely to substitute for pleading. They did not foresee that the package of discovery techniques that they devised —interrogatories, documentary discovery and sworn depositions — would constitute a truth-revealing process so powerful that it would ultimately displace not only the older pleading-based pretrial, but also the trial. By so enhancing the information available to litigants about the evidence likely to be presented were trial to occur, discovery promoted settlement in place of trial. Clarification promoted pacification.” (Emphasis Added) 122 Yale L.J. at p. 570
To remain viable and effective, the mediation process must allow for some limited replication of this dynamic.•
• John R. Van Winkle, of Van Winkle Baten Dispute Resolution, is a former chair of the American Bar Association Section of Dispute Resolution and author of West’s Indiana Rules of Dispute Resolution Annotated. Opinions expressed are those of the author.