by Michael Goldsmith
In 2004, the Boston Globe ran a story suggesting that lawyers nationwide, increasingly frustrated and depressed by “win-at-any-cost legal work,” yearned for less confrontational ways to resolve disputes. The article extolled the virtues of adopting a more “holistic” approach to law practice instead of the usual “slash and burn” litigation model. However, despite widespread job dissatisfaction within our profession, this call for more enlightened conflict resolution largely went unheeded. Today slash and burn litigation remains the norm.
As a law professor, I recognized the benefits of giving more emphasis to human values and collaborative methods for solving disputes in legal education. But as a trial lawyer, I viewed skeptically any approach to litigation that suggested weakness in my client’s position. I struggled with this inner conflict until my work on a hotly contested civil rights action produced a litigation epiphany: Mediation does not necessarily signal weakness; to the contrary, it may allow results that victory at trial could not have produced.
Like most epiphanies, this one did not come easily. I represented a family whose elderly father had been wrongfully prosecuted for murdering his wife. Despite acquittal at trial in 1996, the ordeal exhausted his savings, wreaked havoc on his family, and probably hastened his death. When he and his family learned that a highly questionable autopsy report and false statements had led to the charges against him, they filed a civil rights action. After the family retained me in 2000, we became consumed in expensive discovery and extended motion practice. Eight years later – after two successful appeals to the Ninth Circuit – we still had not gone to trial when opposing counsel asked me to advance by six months the previously scheduled court-ordered mediation session.
Despite their expenses, my clients by now had begun to enjoy the prospect of prevailing through a scorched-earth trial strategy that would have revealed that the defendants had engaged in a pattern of civil rights violations. Of course, I was acutely aware that our case also had weaknesses; surviving summary judgment, I explained, did not guarantee success at trial – far from it. Moreover, given the parties’ adversarial postures, the case would likely consume many years of appeals regardless of who won at trial.
My clients agreed to mediate after we conducted a mock trial in which the jury awarded them far less than the seven figure sum our complaint requested. Surprisingly, the mediation succeeded beyond our expectations. In part, this occurred because the mediation process defused tensions between parties who had been demonizing each other for more than a decade. But it also occurred because our experienced mediator gave both sides a serious reality check. In meticulous fashion, he identified evidentiary and other obstacles we would have to overcome at trial. He never pushed, preferring instead to highlight objective factors that realistically could not be ignored. And he was politely persistent, following up regularly (at the parties’ request) after the initial mediation session produced a stalemate.
Ultimately, however, this supposedly holistic process produced ballistic results. My clients certainly compromised, but we obtained more compensation than our mock jury awarded and received non-monetary relief no court would have imposed. For example, the county defendant issued a formal apology, committed to establishing training programs to reduce the risk of future violations, and formally changed the public record to delete homicide as the cause of death. This actually was my clients’ single most important concern: to vindicate their dad by removing all doubt about his innocence.
Of course, not all mediations will produce such outcomes. Indeed, this case was unique among the mediations in which I have participated as counsel. But all of those in which I participated produced results the parties could live with, saved years of expensive litigation, and allowed the parties to achieve closure.
MICHAEL GOLDSMITH holds the J. Woodruff Deem professorship at J. Reuben Clark Law School. He consults nationwide in a variety of criminal defense and civil litigation matters. He now serves as a Special Master for district of Utah federal court, and has recently started a mediation practice.