The protection of person and property are basic principles of the American judicial system. However, the increasing complexity of both federal and state laws make it very difficult and expensive to resolve conflict through litigation in the court system. It is almost impossible for the lay person to maneuver through the legal process on his or her own. Even attorneys specialize in specific areas of law because it is simply not possible for one individual to maintain proficiency in all fields of law governing state and federal jurisdictions.
In the litigation process, one party fights another in a legal battle to achieve certain results. Sometimes those results are satisfying to a party – but often the judgment is not a resolution that leaves either party completely satisfied. Judgments usually designate one party as a winner and the other party as a loser. Being on the winning side of a judgment sounds good but it can be deceptive. The court process is time consuming and expensive both on financial and emotional resources. In some cases, offsets, counterclaims and comparative fault can leave both parties wondering what happened.
As lawsuits have increased over years, it has become more common for courts to encourage settlement and alternative dispute resolution; in some cases these types of resolution are mandated by law based on the type of claim filed or the amount of damages sought. Yet lawsuits remain the primary method parties choose to resolve conflict. Litigation has been the accepted and customary forum to address civil dispute through our history. This can and is changing as more people learn about alternative forms of dispute resolution and the power that each participant has to create a mutual resolution. It is possible for the court system evolve into something less adversarial and more balanced, an ideal expressed by some of our most respected legal minds.
“The entire legal profession, lawyers, judges, law school teachers, has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we should be healers of conflict. For many claims trial by adversarial contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive for a truly civilized people.” Former Chief Justice Warren Burger in his 1984 State of the Judiciary Address.
Mahatma Gandhi, after negotiating a settlement in a very contentious lawsuit, said that: “. . . both [parties] were happy over the result, and both rose in the public estimation. My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men’s hearts. I realized that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby–not even money, certainly not my soul.” An Autobiography: The Story of My Experiments with Truth, by Mohandas K. Gandhi, Mahadev Desai, Mahadev Desai .