To help my kids with a school mock trial project, we’ve been showing them some classic trial movies, such as Inherit the Wind, A Few Good Men, The Verdict, and of course, My Cousin Vinny. These movies not only illustrate some good trial techniques, they also remind us of how much we enjoy watching the drama of trials. Stories such as these depend on conflict and its resolution captured in a trial. Conflict being deemed essential to a good story, it is only natural that the movies generally avoid telling stories of people peacefully resolving their differences. But some of these movies go even further, by depicting settlement as illegitimate or even evil. In A Few Good Men, Tom Cruise plays a cocky young attorney who plea bargains all of his cases and has never seen the inside of a courtroom. Finally he is forced to defend two Marines at trial, which is shown as the only way they can reclaim their honor, and he can prove that he is a real lawyer worthy of respect. Paul Newman’s portrayal in The Verdict of an over-the-hill attorney who has one last chance to regain any sense of worth, tells an even more profound story. It is clear that if he takes the money the hospital (ironically owned by the Archdiocese) offers him to settle his medical malpractice case, he will lose his soul.
In both these movies, the settlements offered are fair, and accepting those settlement offers would have represented an entirely rational choice, given the enormous risks of trial. (In both cases, the attorneys are sure during the worst moments of the trial, that they will lose, and we see that losing the case is a real possibility.) Further, in The Verdict, the Paul Newman character’s rejection of the defendant’s settlement offer also represents a serious ethical violation, as he failed to inform his client’s family of the settlement offer, and they probably would have directed him to accept it. Yet Hollywood still presents the idea of settlement as somehow shameful, because it would have deprived both the parties and their attorneys of the chance of justice or redemption amid the full trappings of the adversarial process.
Clients or other parties to a dispute often bring the same attitudes to a mediation, attitudes that are no doubt influenced by such stories. People frequently believe that an outcome obtained by fully playing out the adversarial process, even though it carries enormous risks and costs, is more legitimate than an outcome obtained through a negotiated resolution. One cannot say that people are wrong to feel this way, and it is difficult to try to overcome these feelings without shaking people’s faith in the entire judicial system. It may be better to remind people that they always retain the option of playing the process out to its conclusion, and that no one is trying to deprive them of that right, only to explore whether a negotiated resolution might actually give them a better chance of obtaining salvation or peace or justice or whatever they may be seeking.