Why Do Americans Love to Litigate?

Published: Thursday, June 12, 2008

Before litigation, give mediation a chance

Why do Americans love to litigate?

This is a tough question. I mean, most people aren’t crazy about lawyers. Nobody likes paying legal fees. Many people criticize the glacial pace of the judicial process. Everybody loves to rail on about crazy jury verdicts. And yet, we continue to file lawsuits, outsourcing our conflicts to lawyers and judges for resolution. Why is that?

I think there are a few reasons. The first one is because of who we are. Americans believe in justice, and we rely on juries, judges and courts to provide it. In our culture, conflict is resolved in courtrooms, in adversary proceedings, with unbiased judges in black robes and juries of our peers. We want robes, rules and gavels. In America, the resolution of conflict involves justice and ritual. This is not necessarily the case in other cultures.

Americans also seem to have a problem with negotiation. Because we have been raised believing that justice is rendered in open court, we are hesitant to talk directly and privately with our adversary. Sometimes we even view negotiation as sinister. It involves deal-making, compromise and, heaven forbid, it often goes on behind closed doors.

Please don’t misunderstand me. We have the greatest system of justice in the world. There are many, many cases that belong in a courtroom, and the rules and formalities associated with the adversary process work remarkably well. But there are also all sorts of other cases filed that could have been more efficiently resolved by the parties themselves.

There are some other interesting forces at work here, too. It’s no secret that I view mediation as a powerful and under-utilized tool for resolving business conflict. I’m always pitching business people to consider alternatives to litigation. For years, part of my pitch went like this: “In mediation, you make the rules. You control how your dispute gets resolved. You make the decisions. You’re in control over your destiny! Isn’t that terrific?” Eventually I noticed that it was at that moment of my pitch that people stopped listening to me and started dialing up their lawyer to have them file suit.

So what am I to conclude from this response? My pitch isn’t that good, for one thing. But I can’t help but wonder if maybe we aren’t really that interested in handling our own conflicts. Could it be that in reality we love having our lawyers handle it for us?

• “Don’t talk to me, call my lawyer. She’s handling it.” How often do we hear that refrain? It works great. We avoid taking responsibility for resolving the dispute. As an added bonus, we acquire a convenient crew of scapegoats if we don’t get the result we want. We can blame the lawyers, the judges and even the system itself. What a country.

But is this healthy? It certainly isn’t good for business, which spends billions each year on litigation. What toll is this taking on American business when we compete in a global economy with nations that don’t share our penchant for litigation?

Our fondness for filing suit is also damaging one of the cornerstones of our judicial system: the relationship between lawyer and client. For the system to work properly, that relationship must be based on mutual trust and respect. More and more it seems like it is turning into one of unhealthy codependence. The clients outsource their conflict to their lawyer and avoid the responsibility of negotiating and decision-making. The lawyer believes she is doing what the client wants, and litigation pays a lot of bills. In the end, when the result isn’t a good one, the lawyer and the system bear the blame, and everyone is miserable. But the beat goes on.

Ironically, part of the solution to this problem may involve rebuilding that very lawyer/client relationship. As lawyers, we might be able to improve it by making sure our clients understand that while the law is almost always relevant in dealing with a dispute, it is not necessarily determinative. There may be other alternatives available to the client that could do a better job of meeting the client’s most important interest than filing a lawsuit. As lawyers we must use the law to understand the relative strengths and weaknesses of the client’s position. But every bit as important is the role we play in helping the client decide whether asserting those legal rights in court is the best option.

As lawyers, we are ostensibly experienced negotiators. Perhaps we could add value to our services by sharing this expertise with our clients. We could choose to help them understand that they can help themselves by becoming better negotiators. Good negotiators, after all, are made, not born. Most of them can do it. This might help return the lawyer/client relationship to one based on healthy and mutual trust and respect, rather than codependence.

I can hear my brethren breathing heavily already, thinking that I’m going to put us all out of business with this nonsense. But this need not be the financial death knell for lawyers. There will always be plenty of trial work for talented litigators. Clients will still seek plenty of advice from their lawyers. But re-establishing the attorney-client relationship on principles that are built to last would be good for lawyers, clients and the justice system.

Scott Flegal is a business lawyer and mediator. Visit him online at www.flegal.com or www.negotiationworks.org