A Relationship Model of Dispute Resolution

Do you know where the word “trial” come from? Its origins date back to the 12th-century French word trier, meaning “try,” “pick out,” or “cull.” By the 15th century, it referred to “an examination before a court” or “putting to proof by examination.”

But interestingly, and not accidentally, by the 16th century the definition of “trial” had grown to include “being subject to affliction or trouble through experience.” Today, it also commonly refers to an “ordeal,” with equally fun synonyms like “hardship,” “suffering,” and “nightmare” — any of which would probably resonate with the average recent litigant.

Trials aren’t nice. They’re explicitly structured as an intensive contest of opposing forces, a hammer-and-tongs battleground in which two zealous advocates tear each other’s positions to shreds so that a neutral arbiter can divine the truth from what remains. That’s the idea, anyway; in practice, most litigation more closely resembles a wearying battle of sniping attrition, dragging on exhaustingly until one side simply gives up and goes home.

The fundamental nature of a trial is that it’s a conflict — there will be a winner who claims the spoils (plus costs), and a loser who walks away with nothing. And because it’s winner-take-all, no quarter is asked and none is given: each side says and does things that are aggressive, hurtful, and destructive. There can be, and often is, enormous collateral damage. But who cares, right? The important thing is that justice is served.

What we know, of course, is that a lot of people do care about the aggression and destruction, because they and their lives and livelihoods and loved ones are the collateral damage. The battleground is their home or their workplace or their business, and when it’s all over, the lawyers and the judge aren’t going to stick around to help clean up all the mess.

Trials, in other words, are a lousy way for most disputes to get resolved. But our civil justice system makes trials the default option for resolving disputes. Legal proceedings are initiated with statements of claim for a trial and continued with statements of defence — documents that lawyers regard as largely procedural and tactical, but that clients read and get angry at and hurt by what the other side is saying about them. And it goes downhill from there.

More problematically, the civil justice system makes trials the centrepiece of dispute resolution, the “mental model” around which all understanding of DR revolves. This is why mediation and arbitration, which together resolve more than 90 times as many disputes as trials do, are still referred to as “alternative dispute resolution.” They’re not “alternative” because there are fewer of them (there aren’t); they’re “alternative” because the civil justice systems regards them as fundamentally less legitimate. Trials are more real.

There’s a lot we could do better here. One good place to start would be to recognize that trials, when they do occur, inevitably damage or destroy any relationship that existed between the litigants beforehand. This is most obvious in family law, but you see it in all kinds of litigation — even commercial cases where an ugly fight between a company and a previously valued supplier ensures the two sides will never work together again.

Accordingly, I propose a relationship model of dispute resolution: The choice of dispute resolution environment should take into account the nature of the relationship that is the subject of the dispute. The more important or valued or future-looking the relationship, the farther away from trials and courtrooms it should be kept.

Think of the entire population of civil disputes as lying along a spectrum of relationship types. At one extreme are disputes between two parties that had no previous existing relationship and will never form one in future. For example, take a car accident: Two people crash into each other, their insurance companies subrogate the claims, and the two drivers never cross paths again.

At the other end of the spectrum is a divorcing couple with three children, the youngest of whom has a profound physical disability. This couple had an intense and intimate personal relationship before the marriage broke down, and they will have to closely collaborate and cooperate for years to come, if not decades. This relationship must be preserved and strengthened in order for the children’s best interests to be served.

Between the random accident and the painful divorce lie countless civil disputes which can be sorted according to the desirability that the relationship between the litigants is protected. The commercial dispute mentioned above probably lies somewhere near the middle of the spectrum: The relationship has been valuable and both sides would benefit if it continued, but there are many other potential business partners out there.

How about an employment dispute? Arguably, a wrongful dismissal suit doesn’t involve a relationship that needs protecting, since the employee most likely will leave the workplace. But what if that employee was popular in the office or on the factory floor? A scorched-earth campaign by the employer to win the lawsuit could poison relationships with the remaining workforce. There are no hard and fast rules here — only a recognition that the more valuable the relationship that could be adversely affected by a destructive trial, the less suitable a venue for the dispute resolution process a trial becomes.

It would be great if this could become not just a useful guideline for advocates and mediators, but also an embedded feature of civil DR systems. But for that to happen, we would first need to do something that’s long overdue: Massively increase and diversify the supply of public dispute resolution mechanisms.

It’s not good enough that the only recourse for the vast majority of civil disputes is the court system; the majority of cases don’t belong there. It’s also not good enough to divert these other disputes to mediation or arbitration. For one thing, these are private services that not everyone can afford or access.

For another, many disputes don’t need a mediated settlement or an “arbitrary” decision — they need a definitive ruling on a critical point of fact or law by a qualified public official. Psychologically, in order to feel that their dispute really has been resolved, many people need “their day in court.”

But that day doesn’t need to be in an actual courtroom or in an actual trial. If we had a range of public (or publicly affiliated) DR options, with a mix of declarations and mediations as appropriate to each case, we could not only lower the enormous pressure on courts and reduce trial backlogs, we could also achieve swifter, less expensive, and more relationship-preserving dispute resolution for a greater number of people.

Our civil dispute resolution system is broken. It’s a quagmire that makes almost everyone involved with it miserable. We need to fix it, or more likely, replace it with a fleet of better options. When we finally do get that project underway, we should align our range of new solutions along a spectrum of relationship preservation. We should recalibrate and reconfigure our DR processes to ensure the strength and resiliency of ongoing human relationships.