I posted comments on my litigation blog on a report issued this spring by the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System, which recommends a number of reforms of the Federal Rules of Civil Procedure, chiefly concerning limitations on discovery. This same report gives but a passing nod to alternative dispute resolution. (pp.21-22) The trial lawyers who produced this report are willing to consider what they themselves describe as “radical” changes to the discovery rules, as well as numerous other reforms. Yet, while they recognize the value of mediation, their support for it is lukewarm at best. Although the report recommends that courts raise the possibility of mediation or other forms of ADR, it describes this recommendation as a “controversial principle,” yet one that “recognizes reality.”
Understanding that trial lawyers are interested in making the rules work more efficiently so that more cases can be tried, their wariness toward negotiated solutions to lawsuits, or issues within lawsuits, is still somewhat surprising. It seems to me that the best way to avoid wasteful litigation on the way to trial is to encourage negotiated resolutions of pre-trial issues, particularly discovery disputes. Finding means to resolve pre-trial disputes, other than by making demands and objections, exchanging angry letters, and filing motions, might encourage the early settlement of more cases, but it should also allow more cases to be tried. Many cases settle now only because of the crushing burden and delays of pre-trial motions and discovery. Trial lawyers, as well as clients, should have an interest in reducing those expenses by encouraging their resolution through a negotiated process. Mediation should not be thought of as an “alternative” procedure that the courts have to send the parties elsewhere to accomplish, but should be integrated into the rules themselves. Courts already do this to some extent by requiring the parties to meet and confer before filing certain motions, and the Federal Rules now require an early meeting of counsel (Rule 26(f)) and a voluntary exchange of initial disclosures. (Rule 26(a)) For a true reform of the Federal Rules, more thought should be given to further incorporation of “alternative” dispute resolution procedures into the process.