As a litigator for 45 years as well as a trained mediator, I see the picture differently than most of the lawyers I know or see in court. They are driven, focused and well-intentioned but, in my view, misguided. Litigation today is not for most people; the only cases that should be litigated are those where one of the parties is simply too unreasonable to see the bigger picture. I have come to realize that, for most people, there is a better way to resolve conflict.
If the client is already in litigation or is contemplating litigation, careful review and scrutiny of the facts are important, but not as important as contemplating alternatives to litigation, which is simply viewed as modern warfare. In today's litigious society, litigation can very quickly lead to a battle of egos and pocketbooks that ultimately begs for a more reasonable, cost-efficient and less-toxic approach to problem-solving.
The Sooner The Parties Approach ADR In Good Faith, The Sooner It Will Work
Luckily, cases filed in the San Francisco Bay Area must undergo some form of alternative dispute resolution (ADR) before they can proceed to trial. I find that the sooner ADR is considered and approached in good faith by all of the parties, the more likely it will work.
A principal reason to do it at the earliest possible stage is to avoid the fact that both sides have incurred substantial legal costs before they go to mediation, thereby making legal fee recovery a factor in whether the case can resolve at a mutually agreeable level. This is putting the cart before the horse — and few attorneys are willing to point out to their clients that the interests of all potential litigants is best served at the outset by considering mediation or some other creative form of dispute resolution before firing off the litigation cannons.
The reason for this failure on the part of the litigators to address mediation at an early state is, unfortunately, self-evident: the clients are gung ho to fight, the litigators are hammers looking for another nail to pound and most litigators need to make their monthly billing requirements. So, the clients' true interests become subordinate to their perceived interests, which are really the lawyers' interests.