When we meet someone for the first time, we immediately start forming impressions of them. It takes a lot to change that perception, even if they turn out to be quite different from the way we initially perceived them. Similarly with conflict. The way in which a controversy is framed does much to affect the way parties subsequently see the dispute.
When a prospective client brings their problem to a lawyer, the lawyer is trained to sift through the client’s story and pick out all of the potential legal claims. Much of the client’s story is irrelevant to the lawyer, even though it may be important to the client. The lawyer then frames the story as an accusation that the other party has committed certain wrongs. What the case is “about” is then determining whether the opponent’s conduct met the standards for assessing liability.
Second, since most cases even in the traditional adversarial system end without a full resolution of those legal issues, we are wasting a lot of resources preparing for an event (trial) that in most cases will not take place. And even in the cases that are disposed of by motion or trial, and thus obtain an adjudication of what the re-framed conflict is now about, the parties are often left unsatisfied with that resolution. And not just because the result may have gone against their side, but also because the case may have been decided based on an issue that is different from what was really troubling them.
The third problem is that the adversarial system encourages the parties to act in an antagonistic manner. The initial framing of the dispute creates new issues for the parties to contend over, and their conduct of the lawsuit or arbitration allows the parties to perpetrate fresh outrages on each other. It does not lead the parties to a different path of problem-solving and accommodation. Not right away, anyway. Before they get to that point, they are likely to inflame the dispute, and create new disputes.
It would be helpful to establish a more formal protocol for out-of-court dispute resolution, starting with a notice of dispute rather than a complaint. A complaint invites the defendant to deny the allegations, to file motions, and to raise defenses. A notice of dispute invites the other side to agree that the parties have a problem that needs to be solved. A complaint invites the other side to look for ways to thwart the progress of the action. A notice of dispute could suggest various methods of resolving the dispute, and invite the other side to suggest others.
The pleading stage of a lawsuit is usually followed by the discovery stage, a fresh opportunity for parties to battle over what should and should not be produced. Instead of launching into that battle, a notice of dispute could request an exchange of information and documents that would be helpful to resolving the dispute. It would encourage the parties to agree early in the process on what each side needs from the other.
I’ve been toying with this idea in my mind for years, thinking that it would be necessary to persuade the court system to change the rules and forms sufficiently to provide a mechanism for alternative forms of dispute resolution. Now that I think that’s not likely to happen anytime soon, it’s time for parties and lawyers to develop these protocols on their own.
Unless we believe that parties in every case need to engage in adversarial combat before they sit down and resolve the case consensually, just to get it out of their system, parties should understand the value of attempting diplomacy to resolve conflict before resorting to war. It’s not that all cases must be resolved by negotiation. There is still a place for hard-fought contests over matters of principle. It’s just that we don’t need to start off assuming that ALL cases must be resolved by such adversarial means.