party to pay the lawyers’ fees of the successful party, unless that had been specified at the outset in the contract under dispute. That failure, it is often argued, creates an asymmetry favoring the wealthier party (whether that is the plaintiff or the defendant), and placing pressure on a less wealthy plaintiff to settle for less than the actual loss, and on a less wealthy defendant to settle by paying a frivolous claim. That’s because wealthy parties threaten expensive litigation, adopt delaying tactics, and file endless discovery motions in order to wear down the other party financially. It is illogical that the goal of civil justice should be to make the aggrieved party whole, but that the loser should not be required to pay the winner’s attorney fees in the U.S. In contrast, legal systems in Britain and some other countries require the loser to pay at least some of the winner’s fees and costs.
The remaining defect of state civil justice is the most fundamental one: that it is concerned with damages, and that emotional closure and reconciliation are secondary or irrelevant. For civil disputes pitting against each other strangers who will never encounter each other again (e.g., two people whose cars collide), in some cases something could be done to promote emotional closure and avoid a life-long legacy of non-resolution, even if it merely involved offering both parties the opportunity (if they consent) to air their feelings to each other, and to perceive each other as humans with their own motives and sufferings. That can be possible even under such extreme circumstances as when one of the parties has killed a close relative of the other party. Better than no emotional exchange at all was the exchange that did take place between Gideon and Billy’s father—or the exchange between Senator Edward Kennedy and Mary Jo Kopechne’s parents, when Kennedy on his own private initiative courageously visited and looked into the faces of the parents whose daughter’s death he had caused through his own gross negligence.
Worst of all are the innumerable civil cases in which the parties in a dispute do potentially have the prospect of an on-going relationship: notably, divorcing couples with children, siblings in inheritance disputes, business partners, and neighbors. Far from helping to resolve feelings, court proceedings often make feelings worse than they were before. All of us know disputants whose relationship became poisoned for the rest of their lives by their court experience. In merely the latest in a long list of such stories among my own acquaintances, one close friend of mine and her sister were subpoenaed in an inheritance court case between her brother and her father, who were suing each other. The bitterness left by those judicial proceedings was such that my friend and her sister are now being sued by their own stepmother, and that both my friend and her sister expect never again to speak to their brother as long as they live.
One suggestion often made about how to mitigate this fundamental defect of our civil justice is to make increased use of mediation programs. They do exist, and they are often helpful. But we don’t have enough mediators and family-law judges, our mediators are undertrained, and our family courts are understaffed and underfunded. As a result, divorcing couples often end up talking to each other only through their lawyers. Anyone who has repeatedly visited family-law courts knows that the scene there can be horrible. Opposite parties in a divorce case, their lawyers, and their children may have to wait in the same waiting room with each other, and with disputants in inheritance cases. To mediate effectively, one must make the parties feel comfortable first: that’s impossible if they have been glaring at each other for hours in the same waiting room. Children get caught in the middle of arguments between divorcing parents.
A judge can and often does require parties to participate in an attempted settlement conference before letting the case proceed to trial. But it takes time and skill for a mediator to make a mediation or settlement conference work. Mediation commonly requires much more time than is allowed for a mandatory settlement conference. Even if the parties in the dispute are not going to have any future relationship, successful mediation would decrease future burdens on the court system: burdens arising from the parties going to the expense of a trial, or else being dissatisfied with the decision and coming back to court with future complaints, or settling only after a long expensive fight.
If our state societies would pay for more mediation and more family-law judges, perhaps many divorce and inheritance cases could be resolved more cheaply and with fewer hurt feelings and more quickly, because the extra money and emotional energy and time required for mediation are likely to be less than the extra money and energy and time required for bitter court proceedings in the absence of mediation. Divorcing couples who agree to it and can afford it are able to obtain those advantages by opting out of the family-law court system, through hiring retired judges to settle their dispute. The retired judge conducts a pseudo-trial and commands a high hourly fee, but that fee would otherwise be dwarfed by weeks of lawyers’ fees. The judge is there to hammer out a deal for everyone and isn’t rushed as are our judges in family courts. The hearing is predictably timed: the parties know that it will take place at a certain hour, and they don’t have to appear several hours ahead merely because they can’t predict whether the judge will be running late on previous cases on the docket, as commonly happens in divorce courts.
I don’t want to overstate the value of mediation, or to imply that it is a panacea. Mediation presents many problems of its own. Its outcome can be kept secret and so may not establish a judicial precedent or serve a broader educational purpose. Litigating parties who accept mediation know that, if mediation fails, the case will be litigated according to the usual criteria of legal right, wrong, guilt, and responsibility, so mediators do not feel entirely free to adopt different criteria. Many disputing parties want to be heard in court, do not want mediation, and resent being pressured or forced to mediate.
For example, in a famous case based on an incident in New York City on December 22, 1984, a man named Bernhard Goetz was approached by four young men whom he took to be muggers. He pulled out a gun, shot all four of them in claimed self-defense, and was subsequently indicted by a grand jury for attempted murder. His case provoked vigorous and divergent public discussion, some people praising him for having the courage to fight back, others condemning him for over-reaction and vigilantism. Only later did the background become known: Goetz had actually been mugged four years earlier by three young men who chased him and beat him severely. When one of those assailants was caught, the wily assailant filed a complaint claiming that he had instead been attacked by Goetz. Hence the court invited Goetz to a mediation hearing with his mugger. Goetz declined the invitation and was never told that the mugger was eventually jailed after committing another mugging. Goetz decided to buy a gun, having lost faith in a legal system that appeared to offer only mediation between muggers and their victims. While Goetz’s case is unusual, it remains sadly true that our courts are so overburdened that they not infrequently do propose or mandate mediation for parties who are adamantly opposed to their case being mediated. But these facts should not blind us to the potential value of mediation in many cases, and to our underinvestment in this pathway.
I’ll conclude this discussion of mediation and emotional closure by quoting comments on pros and cons by a lawyer colleague of mine, Professor Mark Grady of UCLA Law School: “Many people object that the state has no business concerning itself with damaged personal relationships and feelings. They argue that only a ‘nanny state’ would take on that task, and that for a state even to try to repair personal relationships and damaged feelings is a threat to liberty. They also argue that it is an infringement of people’s liberty to be forced to settle their differences with wrongdoers. Instead, victims should have the right to seek the state’s judgment against their adversaries and, having received that judgment, simply to walk away from those who have wronged them.
“A response is that states maintain costly systems of justice that serve highly evolved and distinctive purposes in mass, non-face-to-face societies. Nevertheless, we can learn something valuable from New Guineans without compromising the distinctive purposes of our justice systems. Once the state takes jurisdiction over a dispute, it has incurred a cost to settle that dispute. Why not at least give the parties the option to settle the dispute on a personal level as well as on a legal level? No one should require disputing parties to avail themselves of mediation systems that the state might offer them, and the systems would not necessarily replace the usual formal systems of adjudication unless the parties agreed that they should do so. Instead, mediation systems would be an adjunct and possible substitute for a more formal legal system, which would still remain available. There would be no harm in offering people this opportunity, and a lot of good could come from it. The danger, which is well illustrated by the New Guinea system, is that people could be coerced into mediation under circumstances that compromise their dignity and liberty, and that might even extend the injustice of the original wrong. The reformed system would have to safeguard against these abuses, but the possibility of these abuses is no reason wholly to neglect the possibility that human wrongs can be resolved on the human level.”
State criminal justice
