Why Is Mediation Becoming More Prevalent?
It wasn’t always like this.
I externed for Judge John Munter of the San Francisco Superior Court. He’s still the quickest, most intense attorney I’ve worked with. But he practiced law in a time before text messages, email, or even the fax machine—so unfamiliar with computers that he used a handwritten checklist just to open a document.
As he looked out over San Francisco’s Civic Center from his chambers, Judge Munter once told me:
“When a matter first comes in, the most important thing any attorney can do is take a moment, put their feet up, look out the window, and think about how the matter is going to end.”
He worked cases backwards. His trial plan informed every motion, every discovery request, every letter. And he lamented attorneys who came to his courtroom with a record that showed they’d never once imagined the case going to trial.
Gregg Sindici, one of the first partners I worked with, kept a little black book—a handwritten index of all important cases he’d encountered. He dictated every motion and letter. And he called the fax machine the single worst invention for the practice of law:
“We used to talk to opposing counsel. Letters used to take time. Now we just fire off faxes.”
When I started practicing, mediation wasn’t the standard. Most cases settled because attorneys picked up the phone, often calling someone they already knew, and worked it out.
As time passed, case volume grew. Filing speed accelerated. “Responsiveness” substituted for thoughtfulness. California shifted from local markets to one statewide market, and opposing counsel were often strangers.
As volume rose and opposing counsel became a name and number, mediation filled the gap. At first, I didn’t get it. Why involve a third party to settle a case? But soon I saw it: mediation forced lawyers to talk. Sometimes scheduling was the first meaningful phone call between opposing counsel. Preparation for mediation was often the first time lawyers—and their clients—paused to think about how a case might actually end.
I don’t know if technology’s speed and case volume caused mediation’s growth. I haven’t run the surveys; this is my blog, not data. But as technology pushed lawyers to appear “responsive” and caseloads multiplied, mediation became a more useful—and often necessary—tool to achieve results for the client.
Next week we’ll talk more about the volume of cases courts are expected to handle and why volume favors mediation. Foundational topics continue.
Mondays x Morello Mediation. None of this is legal advice. Your mileage may vary.