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One commentator has indicated that often times we file papers in court for the primary purpose of getting the attention of the other side so we can negotiate. This has been cleverly referred to as "litigotiation."
Litigators in the 1970s and 1980s faced an increasingly over burdened court system. At one point in our history, the court system in Los Angeles took over 60 months to get a civil case to trial. Attorneys realized that juries, when we finally get them, are unpredictable. Moreover, the cost to prove even the most simple case made some trials economically prohibitive.
Options Borrowed from the Labor Field
Litigators began to observe that perhaps there were other choices available that managed costs, were more efficient and clearly more timely than trial. We looked at other cultures, borrowed ideas from the labor field, and realized that some clients would be better served if their cases were resolved in something other than a court room. We then started using arbitration for smaller civil disputes since that process worked for years in labor contracts, was more informal, less costly and seemed to be successful.
While mediation was also used in the labor field, it didnít catch on as quickly in the 1970s while arbitration was making its way up the ladder. Yet litigators were still looking for a way to negotiate, but possibly with the help of a third party, similar to an arbitrator, but who could not make a decision on the case.
Early mediation programs grew out of the family law courts that observed which there might be a more humane way to solve these problems than to present them in a public forum. Family law litigators started to move in the direction of mediation since the issues they had, like child visitation and custody, probably didnít make sense to put in a courtroom environment. Indeed the early mediation programs in family law courts envisioned using neutral third parties who were not necessarily members of the bar to serve as mediators. As the process began to emerge, some felt that working through a negotiation of a family dispute was something a therapist could do better than a lawyer. That process continued to evolve and now we have applications of the mediation process all over the map.
The Next Generation of Dispute Resolution
Following the lead of the family law arena, civil litigators began to see the value of bringing in a neutral third party to assist or facilitate in the negotiation process. While it took about 15-20 years to institutionalize the mediation system into our civil justice system, it appears that it is here to stay as a viable option for litigators who want to settle their cases without going to court.
Following this second generation of dispute resolution options available to litigators, we move forward until about ten years ago, when another generation of options became available to settle cases out of court. This third generation resulted from people wanting to tailor their mediation or arbitration process to match the particular dispute. Now we have at least 25 other hybrid processes available, ranging from baseball arbitration to mini-maxi arbitration, with various things in between, including summary jury trials, med-arb and much more.
The current Continuum of Conflict takes on a dimension that is far broader than we saw 40-50 years ago. The world has changed. We are now beginning to reframe our choices so that the strategies we select to intervene in a dispute give us the best possible chance of achieving resolution at the least possible emotional and financial cost to our clients.
Negotiation is at the heart of the many choices we have to resolve cases. Whether we use negotiation to actually settle a case or parlay a matter into another procedure which is less intrusive than court, litigators must fundamentally rely on the negotiation process for everything they do.
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Copyright © 2000 Jeffrey Krivis
Copyright © 2003, The Negotiator Magazine