MAY 28, 2019 INADR
  Dramatic Shift in Dispute Resolution
Dick Calkins, Founder of INADR, Past President
Over the past 200 years, lawyers have taken great pride in the American judicial system, which seeks the truth and all instances and to do justice to all who enter its hallowed Halls. However, in the last several decades, there has been a dramatic shift in the way Americans resolve their differences from the courtroom to the conference table. It is called mediation.
In the early 1980s, the then Chief Justice of the United States Supreme Court, Warren E Burger, launched an attack on our Judicial System. He stated:
"Traditional litigation is a mistake that must be corrected. For some disputes trials will be the only means, but for many claims trials by adversarial contest let's go the way of ancient trial by battle and blood. Our system is too costly, too painful, too destructive and too inefficient for truly civilized people."
And he attacked the legal profession for promoting litigation. He went on to add:
"The entire legal profession, lawyers, judges, and law professors has become so mesmerized with a stimulus of the courtroom contest that we tend to forget that we are to be the healers-not the promoters- of conflict."
Indeed, Chief Justice Burger redefined the lawyers obligation to the client. He said, that to fulfill the" traditional obligation means that we should provide mechanisms that can produce an acceptable result in the shortest possible time, with the least possible expense, and with minimum stress on the participants. That is what Justice is all about."
The Chief Justice promoted mediation as the elixir because it is less costly, less painful and destructive, less inefficient than the courtroom trial. And he has been proven correct because mediation continues to grow as a primary means to resolving differences to the point it is now clearly winning out in the marketplace. One federal judge stated there is now a "dispute resolution marketplace and mediation seems to be prevailing in that market."
The courtroom trial is unacceptable to the many because it is based on an adversarial principle that to resolve differences the party must go to battle; someone must be defeated. It is second
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