The right to a trial by jury is a fundamental liberty, residing at the heart of Anglo-American jurisprudence. It is a core value which defines us as a people and traces its roots prior to the Magna Carta in 1215. The Virginia Declaration of Rights adopted in 1776 provided that in a “suit between man and man, the ancient trial by jury is preferable to any other, and ought to be held sacred.”
As a method of resolving modern day civil disputes, however, trial by jury has lost some of its luster. The discovery process grinds slowly toward an often anticlimactic struggle between parties left traumatized by the process. Along the way, the “principle,” initially deemed worthy of vindication at all cost, can become elusive to the point of obscurity.
Parties put themselves at the mercy of the court, seeking money damages to restore them to a position formerly enjoyed. Their motivation may be primal: vengeance, pride or justice. For some, the gamble pays handsomely. For others, “victory” rings hollow when compared with an alternative means of resolving the dispute.
In ancient societies, disputing parties sought a wise elder’s counsel; someone familiar with the parties and the dispute. A trusted broker, acting beyond reproach, this person served as a conduit through whom the parties could themselves reach a fair and just compromise.
The modern day equivalent of this time-honored practice, which predates even the revered trial by jury, is “mediation.” Mediation creates an atmosphere where posturing and gamesmanship, the life’s blood of litigation, is replaced by redirecting the parties’ creative energies to focus on a mutually beneficial solution. The virtues of mediation are its cost (a fraction of the cost of litigation), its non-binding informality (if it fails, the parties go back, without prejudice, to litigate in court), and its flexibility (offering infinite solutions, by contrast to the procedurally stilted remedies available in court).
Perhaps most important, it empowers parties to control their own destiny, rather than having an imperfect solution imposed by others, leaving both parties dissatisfied. It’s sometimes possible, through mediation, for both sides to prevail, each achieving a greater measure of “justice” than they might have otherwise. Novelist William Gaddis commented on the absurdity of the modern American legal system by beginning his book “A Frolic of His Own” with the following line: “Justice? – You get justice in the next world, in this world you have the law.”
Having practiced law for almost 30 years, I have seen cases where a jury trial was the only appropriate means to decide either a case of significant import to society or where circumstances simply precluded a pre-trial settlement. I have also seen tremendous good come of carefully orchestrated settlements in cases, both simple and highly complex.
The New Jersey Supreme Court has, since 1992, directed all lawyers to “become familiar with available (dispute resolution) programs and inform their clients of them.” After 20 years, it’s now firmly entrenched in the legal system, mostly because lawyers, clients and judges see it actually works.
Mohandas K. Gandhi, who practiced law, wrote: “I understood that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the 20 years of my practice was occupied in bringing about compromises of hundreds of cases. I lost nothing thereby – not even money, certainly not my soul.”
A path trodden long ago has been rediscovered among the bramble of our system of dispensing modern American justice. Many who go down that path emerge more intact, their dignity better preserved, able to move forward, beyond “the case.” I hope that we who work within the civil justice system may continue to see its imperceptible shift toward a more enlightened awareness of the toll it exacts from its participants. We best serve our clients by empowering them, by allowing them the opportunity to help fashion the outcome of their legal disputes.
Having served as a mediator in approximately 100 cases, I am available to assist interested parties and their counsel in exploring alternate dispute resolution options, including mediation.