A report recently released by the American College of Trial Lawyers Task Force on Discovery included a recommendation that courts should “raise the possibility” of pre-trial mediation and other ADR processes, and in some cases should order their use. The project was conceived because of increasing concerns that problems in the civil justice system have resulted in unacceptable delays and prohibitive expense.

The objective of the civil justice system is “the just, speedy, and inexpensive determination of every action and proceeding.” Unfortunately, the American College of Trial Lawyers report found that that objective is now often not being met. Trials, especially jury trials, are vital to fostering the respect of the public in the civil justice system. Trials do not represent a failure of the system. They are the cornerstone of the civil justice system. Unfortunately, because of expense and delay, both civil bench trials and civil jury trials are disappearing.

Three major themes emerged from the survey:

1. Although the civil justice system is not broken, it is in serious need of repair. Today’s system takes too long and costs too much. Some deserving cases are not brought because the cost of pursuing them fails a rational cost-benefit test while some other cases of questionable merit and smaller cases are settled rather than tried because it costs too much to litigate them.
2. The existing rules structure does not always lead to early identification of the contested issues to be litigated, which often leads to a lack of focus in discovery. As a result, discovery can cost far too much and can become an end in itself.
3. Judges should have a more active role at the beginning of a case in designing the scope of discovery and the direction and timing of the case all the way to trial. According to one participant, “Judges need to actively manage each case from the outset to contain costs; nothing else will work.”

As a result of these issues, the report encouraged courts to raise the possibility of mediation or other form of alternative dispute resolution early in appropriate cases. Courts should have the power to order it in appropriate cases at the appropriate time, unless all parties agree otherwise. Mediation of issues (as opposed to the entire case) may also be appropriate. Over half (55%) of the respondents in the report said that alternative dispute resolution was a positive development. A surprisingly high 82% said that court-ordered alternative dispute resolution was a positive development and 72% said that it led to settlements without trial. As far as expense was concerned, 52% said that alternative dispute resolution decreased the expense for their clients and 66% said that it shortened the time to disposition.

The full report by the American College of Trial Lawyers Task Force on Discovery can be found here.