The use of dispute resolution to accomplish a swift and efficient settlement of civil lawsuits is fast becoming a trend in the United States. In this article, Peter R. Steenland, Jr., senior counsel at the Office of Dispute Resolution in the U.S. Department of Justice, provides an insight into alternative dispute resolution and gives an overview of how the Department of Justice uses the process in its cases.

In the United States, the Department of Justice is responsible for conducting litigation on behalf of federal agencies and their officials, using a staff of lawyers in Washington and in 94 judicial districts throughout the United States. These lawyers are responsible for some 20 percent of all the civil cases in the U.S. federal courts. Cases include some of the most complex and difficult litigation in the country, covering a wide variety of subjects including tort claims, civil rights enforcement, employment law, contract disputes, environmental claims, tax matters and issues involving antitrust laws.

To achieve greater efficiency in handling these cases, U.S. Attorney General Janet Reno in 1995 established a Dispute Resolution Program in the Department of Justice that is applicable to all civil cases. The attorney general ordered every lawyer at the Department of Justice to be trained in how to use mediation and in advanced negotiation techniques. She also set aside funds to hire mediators for government cases and made clear to those who litigate with the federal government that the United States was interested in using mediation when appropriate.

Under the auspices of the Dispute Resolution Program, the Office of Dispute Resolution was established to work with Justice Department lawyers, the courts, professional organizations and other federal agencies to promote greater use of mediation and other forms of dispute resolution. From the attorney general's perspective, every government lawyer should be a "problem solver" as well as a litigator and should be prepared to use whatever processes might be helpful to secure a favorable resolution of the dispute with a minimum amount of conflict.

In the four years since the office's inception, the use of dispute resolution by the Department of Justice has increased four-fold. A form of dispute resolution -- usually mediation -- is used in some 2,000 cases per year to help find solutions to problems that are acceptable to all parties. Often, this involves a settlement on terms that courts do not have the authority to provide but is nevertheless very important to the parties. This point demonstrates that litigation can be an inefficient way of resolving disputes because a court can only decide legal questions. It cannot address the underlying interests of the parties that may have caused the dispute in the first place.

"Justice Delayed Is Justice Denied"

Under the U.S. judicial system, both federal and state courts give priority to criminal matters. Often, the accused is incarcerated before trial, and on many occasions, the testimony of witnesses to the crime may not be as effective if a great amount of time has elapsed between the crime and the subsequent trial. Thus, while there may be good reasons for giving priority to pending criminal matters, such preference can have an impact on civil disputes that also are awaiting a court date. Generally, the larger the criminal docket, the longer it takes for an ordinary civil case to be decided by the court.

The delay of any court proceeding is, of course, a serious concern for civil litigation as well as for criminal cases. The old maxim of "justice delayed is justice denied" can be all too accurate, especially in a civil lawsuit seeking monetary damages for someone who has been injured or who is out of work, or for a party seeking to enforce provisions of a contract. Another concern for parties in civil litigation is the increased amount of legal fees they may be charged, often resulting from an extensive discovery process and other trial preparation activities. Indeed, some parties find that after spending a great deal of effort getting their case to court and ultimately prevailing, they really have not "won" because the time and money they spent to achieve victory far outweigh whatever benefits they may have received from a favorable judgment.

For these and other reasons, a growing number of parties in civil lawsuits are turning to dispute resolution, and especially to mediation, to assist them in obtaining an early and acceptable solution for civil litigation. Although there are many processes associated with dispute resolution, such as arbitration, early neutral evaluation, mini-trials and summary jury trials, the clearly preferred process is mediation.

Not Deciding Right or Wrong

In mediation, an individual who has been trained to assist the parties to negotiate with each other conducts confidential meetings with each side in the litigation. The mediator is not asked to decide who is right or who is wrong, and it is not expected that the mediator will try to force any specific outcome on the parties. Instead, through confidential caucuses with each side, the mediator attempts to develop options for settlement the parties may be reluctant to explore on their own and to identify key interests of the parties that will need to be accounted for in any settlement.

When a case is selected for the dispute resolution process, mediators are chosen jointly by both parties in the lawsuit. Experience in mediation is more important in selecting a mediator than is the mediator's experience in the subject of the dispute. Since the mediator has no power to decide the case, parties in litigation against the federal government must be willing to cooperate in a search for a mediator acceptable and fair to all. Generally, the parties involved in the mediation share the cost and fees of the mediator equally.

If the mediator is able to assist the parties in reaching a consensual resolution of the case, the settlement is reduced to a written agreement in the form of a contract. In some cases, the parties may present the settlement to the judge so that it can be entered as an order of the court. If there is no settlement, the parties are free to return to court and conduct litigation as if the mediation had never occurred.

Confidentiality

A key ingredient in any successful mediation is that the actual negotiations are confidential. By making all negotiations confidential, the parties are more willing to explore settlement options than if they were negotiating on their own. Confidentiality also applies in all private meetings that the mediator conducts with each party, so that nothing said in any meeting between a party and the mediator is revealed to the other side unless it is agreed to by the participants.

If the parties are able to reach a settlement, the agreement becomes a public document because the public has a right to know how the government has resolved a legal dispute. On the other hand, if the mediator is unable to bring the parties to an agreement, there is no reason to acknowledge anything other than the fact that an attempt had been made at settlement.

The Benefit of A Court Ruling

In some cases, the U.S. Department of Justice will not use dispute resolution because it believes the public is best served by having the matter decided by a court. This is true when the government believes the other side in a lawsuit has no legal arguments of any merit, and where success in court is virtually assured. Sometimes there are circumstances when the government needs the benefit of a court ruling in order to obtain a judicial declaration about the meaning of a new law or regulation. This sets a precedent so that parties affected by that legal issue, as well as those who are not participating in the lawsuit, will know what that law or regulation requires of them.

A Consensual Process

It is important to emphasize that this is a consensual process and that in the United States, no judge or mediator can force any party to settle a lawsuit against that party's wishes. About 60 percent of the mediations involving the federal government result in settlement. If the party opposing the government in a lawsuit does not want to settle, and has no interest in using dispute resolution, this process cannot be forced upon it. Similarly, another party cannot force the government to settle a case where the government is determined to seek a final ruling from a court.

Mediation and other forms of dispute resolution allow the parties in a civil dispute to negotiate in an informed and efficient manner. They are able to reach resolutions more quickly and to find ways of settling cases that might not have been considered if they had been negotiating in an unassisted fashion.

From the particular perspective of U.S. government litigation, dispute resolution is an especially important tool that allows federal attorneys to maintain their customary vigilance without incurring the consequences of the adversary process that often result from protracted and hard-fought litigation. By engaging in problem solving with the other side in a lawsuit, they are able to effectively represent the United States with a maximum amount of respect and a minimal amount of conflict.

As such, mediation is a valuable tool that every lawyer should be able to use, when appropriate, to assist a client in reaching a satisfactory resolution to a legal dispute.