Litigation Should Come with a Warning

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Although the legal profession is largely self-regulated, Rules of Professional Conduct exist to protect the public. For example, the American Bar Association’s Model Rules of Professional Conduct provide in pertinent part as follows: “The legal profession’s relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.” Please note that this is merely a Model Rule, and that each state has its own Rules of Professional Conduct. Regardless, such rules exist “to protect the public and to promote respect and confidence in the legal profession,” as set forth in the California Rules of Professional Conduct.”

However, it appears as though the legal community does quite the opposite, when interpersonal relationships are involved. In fact, I am reminded of the tobacco industry’s “decades of deceit and actions that cost millions of lives,” in response to concerns regarding the health risks associated with its products. I realize that this may seem like an extremely harsh comparison, but let’s consider the facts.

The following is from Hong Kong’s Department of Justice:

The time, costs, acrimony and uncertainty involved in traditional litigation raise hard issues as to whether the present dispute resolution process is adequate to meet the needs of justice and efficiency. Increasingly, mediation is considered the alternative or even the preferred method. In Hong Kong, whether the use of mediation can take off affects not only our status as a leading financial and business centre, but also our efforts to build a more harmonious community….

Many people still think that mediation is, in effect, an informal arbitration. Nothing could be further from the truth. Mediation does not seek to establish liability or fault. It is not a weapon for use in the ‘blame culture’ that is seen in so many parts of the world. Mediation is a process that seeks to help the parties find a solution to their problems that they ‘can live with’. Mediation is not tied to traditional judicial remedies. It can be, and often is, highly imaginative and can have the effect of bringing the parties back into a good relationship.

In the 2007-08 Policy Address under ‘Investing for a caring society’, the Chief Executive of Hong Kong, Mr. Donald Tsang said that, ‘To alleviate conflicts and foster harmony, we will promote the development of mediation services. On many occasions, interpersonal conflicts need not go to court. Mediation can reduce social costs and help parties concerned to rebuild their relationship. This is a new trend in advanced regions around the world….’

The Chief Justice of Hong Kong Andrew Li Kwok Nang in his Opening Address at the ‘Mediation in Hong Kong: The Way Forward’ Conference in 2007 said as follows: ‘I believe that the promotion of mediation is plainly in the public interest.’

The atmosphere in mediation is intended to be non-adversarial…. In family mediation, the settlement or agreement reached is not only responsive to the needs of each party, but also to the needs of their children, and the continuing relationship as parents can also be enhanced. Mediation avoids the tension and conflict in the adversarial system, and may generally start or be terminated at any time. Users save time and money in not having to contest matters in court. Mediations are conducted in a calm, constructive and confidential setting, which is a major consideration for parties involved in a family dispute.”

In British Columbia, the Ministry of Attorney General, Justice Services Branch, described the situation as follows:

One of the most important differences between mediation and the court process (which is called litigation) is that mediation allows people to reach agreements that meet everyone’s interests. The court process, on the other hand, focuses on opposing legal rights and obligations of the parties. In litigation, one person wins and the other person loses….

Mediation can be used for many kinds of family disputes but is most often used when couples separate or divorce. In these situations there are sometimes disagreements about the value of the family home and how other assets are to be divided. If children are involved there can be disputes about where and with whom the children will live, how often and when the children will spend time with the non-custodial parent and how the parents will share the cost of raising the children….

Something that often makes family disputes different from other kinds of disputes is how emotional people may be, especially when disputes about child custody and access arise….

Mediation is particularly well suited to family disputes because the process helps people negotiate settlements on the basis of their needs and interests so that everyone can win in the end. On the other hand, when cases go to court a judge makes a decision that everyone must live with, even when one person wins the case and the other loses.

In family disputes, judges must make their decisions based on the best interests of the child…. It can be difficult for parents to sort out their own needs from those of their children. Mediation can help with that process. The mediator encourages people to think about everyone’s interests and needs, not just their rights. The court process, on the other hand, focuses on a person’s legal rights. The result can be that parents confuse their rights with their child’s best interests — the child gets put in the middle of the dispute….

When children are involved, parents often continue to have a relationship. Mediation can help to develop better channels of communication and to build new, appropriate relationships after divorce or separation….”

According to the Australian Government, “Using ADR to resolve child protection disputes before the Children’s Court is appealing for a number of reasons. Court processes that are underpinned by adversarial principles are conflict-driven by nature, with parties competing against one another to ‘win’. However, care and protection matters heard before the children’s court routinely involve family members and child protection workers who must continue to work together to ensure the safety and wellbeing of the child well into the future. Giving parties an opportunity to resolve child protection disputes outside of a hearing and where this is not possible, at least reducing the amount of time families and professionals have to spend in the courtroom, serves to minimise the potential detrimental impact of contested hearings on individuals and relationships. ADR, and its focus on collaborative decision making, has the potential to encourage more positive working relationships between families and child protection workers. Providing an opportunity to discuss and consider the range of possible options available can lead to decisions that are better informed and more responsive to the needs of children and therefore more likely to be implemented. These are all important outcomes.”

The Honourable Warren K. Winkler Chief Justice of Ontario explains it as follows:

The advantages [of mediation] do not end with costs savings…. [A] mediated resolution can encompass the entire dispute between the parties, not just a narrow issue that is before a court. In addition, a mediated resolution is all the more valuable and meaningful in disputes where the relationship between the parties is longstanding and ongoing….

[R]esponsible lawyers will advise clients enmeshed in lawsuits to at least consider mediation as an option, whether or not the Law Society mandates that this be done.

[Some] types [of cases] should always be mediated. These include wrongful dismissal cases, family law matters, and any dispute in which there exists an imbalance in terms of financial resources or the ability to withstand delay, either occasional or deliberate on the part of the opponent. All these cases, in my opinion, must be mediated at as early a stage in the proceeding as is likely to be fruitful….”

The Law Reform Commission in Northern Ireland found as follows:

In preparing its Consultation Paper and this Report, the Commission’s approach is based on the key objective that civil disputes are resolved in a way that meets the needs of the parties and conforms to fundamental principles of justice….

[W]here it is appropriate, parties involved in civil disputes should be encouraged to explore whether their dispute can be resolved by agreement, whether directly or with the help of a third party mediator or conciliator, rather than by proceeding to a formal ―winner v loser decision by a court. This happens every day in the courts, in family litigation, in large and small commercial claims and in boundary and other property disputes between neighbours. In that respect there are strong reasons to support and encourage parties to reach a solution through agreement, especially in disputes where emotional issues combine with legal issues, provided that this alternative process meets fundamental principles of justice….

While it is difficult to set out general categories of cases which are appropriate for resolution through mediation or conciliation, it can be suggested that features of appropriate cases include: where the parties wish to restore or maintain their relationship with the other party (parents, business partners, siblings); claims where the monetary and non-monetary costs of litigation are disproportionately high in comparison to the issues in dispute; claims where one or both parties are seeking remedies which are not available through the traditional court system (such remedies may include: an apology, an explanation; flexibility in relation to financial repayments; changes in administrative procedures); and where the parties wish to resolve the dispute in a confidential and private manner….

[R]esearch has indicated that: “The adversarial nature of proceedings does little to resolve conflict in families’ lives but rather compounds and increases that conflict in many cases. Alternatives, such as mediation and collaborative law, should be better supported and encouraged, and be widely available countrywide….”

The Commission concurs with the view of the President of Ireland that: “While happiness and misery are not always easy to measure there can be little doubt that the experience of being an active participant in a process that drives towards consensus has to be a considerable improvement on being a passive participant in a process where outcomes are imposed with all the potential for longitudinal resentment that can seriously blight many lives, but especially the lives of children.”

The United Kingdom’s Family Justice Minister has said, “Mediation works and we are committed to making sure that more people make use of it, rather than go through the confrontational and stressful experience of going to court. When people separate we want them to do it in the least damaging way for everyone involved, especially children.”

The United States Executive Branch and the Department of the Navy specify that “ADR techniques shall be used as an alternative to litigation or formal administrative procedures to the maximum extent practicable. Use of these techniques may resolve the entire issue in controversy or a portion of the issue in controversy. The goal is to resolve disputes and conflicts at the earliest stage feasible, by the fastest and least expensive method possible, and at the lowest possible organizational level prior to litigation. Every issue in controversy, regardless of the subject matter, is a potential candidate for ADR.”

The following information is from the Nebraska Dispute Resolution Office, Administrative Office of the Court, Nebraska Supreme Court:

Some form of informal mediation and ways to resolve disputes has been used in every culture and people throughout history. Mediation has been used by indigenous peoples of the Americas, New Zealand, Australia, and also used by religious orders such as the Quakers and Mennonites. In more recent times, formal systems of rights-based dispute resolution, using primarily an adversarial process, have evolved in Western civilization and have been largely and exclusively used in the United States and many other nations….

Mediation both resolves past issues and addresses future needs. Mediation allows parties to come to a resolution of their dispute within the context of their relationship. This is particularly important when the relationship is going to continue, such as the relationship that parents have with one another even after a divorce, the relationship of one business partner to another, the relationship of employer and employee, the relationship of neighbors, etc. Mediation not only resolves the dispute at hand but may set up a framework to more easily resolve future disagreements. Mediated settlements tend to hold over time; and, if the parties do develop a later dispute, they are better equipped to resolve the dispute without resorting to the courts.

Generally speaking, mediation should be considered in those situations where a long-term relationship is involved, such as conflicts between family members, employer/employee, landlord/tenant, debtor/creditor, parent/child/school, neighbor/neighbor, business associates, and many others.”

The Alaska Judicial Counsel has reported, “Research about family mediation suggests that mediation can be an effective and efficient service that can be more helpful than litigation to divorcing couples in conflict. Research shows that the majority of clients entering family mediation across a variety of settings reach agreement (either in whole or in part), report satisfaction with the experience and consider it fair and responsive to their needs. Also, relitigation rates among mediation couples have been found to be consistently low, and lower than those found among their litigation counterparts.”

As set forth by the New York Unified Court System, “In ADR processes such as mediation, parties play an important role in resolving their own disputes. This often results in creative solutions, longer-lasting outcomes, greater satisfaction, and improved relationships…. Mediation may be particularly useful when family members, neighbors, or business partners have a dispute.”

As you can see, governments all over the world are well aware that resolving disputes by way of litigation causes a great deal of damage to business, family, and community relationships. With all of this information available, how can the self-regulated legal profession reasonably believe that resolving such matters through litigation, litigated negotiation, or any other such adversarial process is in the public’s interest? Are those involved in the legal field somehow unaware of this information or do they just choose to ignore it? It should be noted that failure to disclose constitutes a deceptive omission. Since litigation is so costly, has the legal profession knowingly and secretly decided to put the buying public at risk solely for the purpose of making profits? Regardless of the reason, families, children, and our society as a whole are being harmed as a result. Maybe, litigation should come with a warning.