I believe that facilitative mediation produces fair and lasting solutions to complex disputes because it provides the parties with an opportunity to be heard that is often unavailable in judicial proceedings.
We have all read that civil trials are vanishing and need to be rescued. In 2002, when I first began to study mediation, the federal courts tried fewer cases than they tried in 1962, although the number of judges, lawyers and case filings were all substantially higher in 2002. But the decline in the number of trials is only part of the problem.
The pressures of increased workloads, speedy trial priorities and limited resources have led to a belief on the part of some judges that every case that actually goes to trial represents a failure of the system. Other judges, with the best intentions, have adopted expedients that make trials a hollow exercise. Some in the organized bar have suggested that more speed and shorter trials will allow the courts to try more cases.
But some judges already impose strict limits on the amount of time given to the parties--even in complex patent infringement cases--for presenting their case, using chess clocks to keep track of the elapsed minutes. Some courts will not allow oral argument on important substantive motions, relying exclusively on written submissions. Thus, litigants who hope for their "day in court" need to make do with a few minutes. Those who hope for a "hearing" need to settle for a "reading." Lawyers focus on sound bites instead of reasoned discourse.
It is true that some parties--most notably in high-profile criminal trials--have squandered the time of courts and juries by presenting repetitive and irrelevant evidence. But while some juries are bored and frustrated by the slow pace of trials, others are frustrated and baffled by the speedy and shallow treatment of complex evidence. In a patent infringement case that I tried, the tutorial expert testified for nearly a full day, but the jurors told us later that they needed even more time to absorb and understand his testimony.
For complex disputes, greater speed is not the solution. Speed might increase the number of cases tried, but it will also increase risk, unpredictability, and injustice. Speedier and tighter trials will also neglect the emotional needs of the parties. Thirty years of handling complex business disputes have taught me that lawsuits are rarely "just business," that companies can have deeply held values, that charges of "fraud," "bad faith," "infringement" and "piracy" are often meant personally and taken personally and that even intellectual property cases, while seemingly the most cerebral of disputes, often involve great quantities of bad blood.
I rely primarily on facilitative mediation because I think that it can restore many of the values that have gone missing from trials and judicial proceedings.
The parties can choose a mediator skilled in the field, one knowledgeable about the law, or one whose demeanor and judgment suit their case. One of the facilitative mediator's most important jobs is to be sure that he hears and understands the parties and that they hear, understand and respect each other. Thus the mediation process has no time limits. The parties can communicate with the mediator ex parte. Emotion is not repressed but encouraged. Rules of evidence and time constraints do not inhibit the expression of values or interests. Relationships are preserved.
Complex cases especially can benefit from mediation. A mediator will have the interest and time to understand the parties' business needs, or, in an intellectual property case, to appreciate the technology and how the parties have contributed to the advancement of the art. He will encourage inventors and business people in high technology firms to use their inherent creativity to find solutions that are beneficial to both sides.
Facilitative mediation can provide better solutions because it can provide better hearings.
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