As trials in civil cases have become increasingly rare, in part due to the rise of ADR, we sometimes forget that trials can serve a profound purpose. There are few processes that can “decide” a contested factual issue like a trial.
Below is a video of David Boies debating Tony Perkins, head of the Family Research Council. Boies’s explanation of what happened at the recent Proposition 8 trial, makes me proud to call myself a trial lawyer, and reminds us of what courts can do at their best. Even if you think the courtroom was not an appropriate place to determine the constitutional validity of a state initiative denying gay people the ability to marry, you have to admire trial lawyer Boies’s description of the power of trials to expose the weaknesses of positions that are easy to support on, say, television. By contrast, in a court of law, as Boies states, you have to support your opinions with actual evidence, and defend them under cross-examination: “The witness stand is a lonely place to lie.” The reason Boies and Ted Olson won the Prop 8 case at trial was because their side had numerous empirical studies and other evidence showing that gay marriage has no harmful effects on society. The other side seemed to be relying mainly on faith, which doesn’t usually stand up well against an onslaught of empirical evidence. (On the other hand, Clarence Darrow lost the Scopes case, which provided a similar opportunity for science to confront faith, but Darrow’s position was eventually vindicated in subsequent court cases.)
Gay marriage would present an interesting issue to test in a mediation-like setting, that could perhaps open people up to consider opposing points of view. I don’t know what result would have been produced by a mediation, as opposed to a trial, of the validity of Proposition 8. Perhaps a mediated result would have led to a solution that would command more of a consensus of public opinion. But mediation does not produce law in the same way that appellate review of this trial result will produce law, and mediation would not have provided the plaintiffs’ side in this case with the same ability to expose the factual weaknesses of their opponents’ position. In mediation, as on tv, parties can cling to false positions, and all participants’ feelings are entitled to some weight. On the other hand, I have been involved in some mediations in which parties did a pretty effective job of confronting the other side with evidence, or demonstrating the other side’s lack of evidence.
As I have mentioned in previous posts, mediators sometimes seem to forget that we need trials to provide a measuring stick to assess the potential value of mediated claims. We need trials to create law. And we need trials to decide important issues that could perhaps be resolved in other ways, but don’t seem to get “decided” in any other way. Mediation should not be seen as a means of “replacing” trial. Instead it should be seen as a way to help parties avoid or reduce the costs of litigation, and in appropriate cases (i.e., most cases), lead to a negotiated settlement instead of trial.
In case it is not clear from this and other posts, I should reiterate that I remain a big proponent of mediation. I enjoy serving as a mediator, and I think that in the vast majority of cases, mediation can reach an outcome that is better for both sides than trial. That is the goal anyway. But mediators should be aware of the limitations of the process, and keep in mind that some disputes are best resolved by more traditional means. In fact, one way to encourage a settlement in a mediation is to remind the parties that if they go to trial, they are going to have to support their position with evidence that is persuasive to the fact-finder.