The Litigation Funnel

(excerpted from a post on my mediation blog)

In a talk I heard yesterday at the Southern California Mediation Association annual conference, Lee Jay Berman used the metaphor of a funnel to describe how how the legal system squeezes the issues involved in conflicts to the shape of a dried-out hamburger patty, so that most of the concerns of the participants in the dispute get left out of the process.  So one could think of the legal system as a kind of meat grinder.  And the mediator has the job of putting some flavor back into the squeezed-out meat, and adding some new ingredients to the mix.  

This concept resonated with me since as a practicing trial attorney I have often found myself listening to clients providing endless streams of information, most of which seems to have no use in a potential or actual lawsuit.  To draft a complaint for a client, I need to hear the client tell me the whole story, which clients often want to do in great detail, but I then need to weed out about 90% of what they are telling me in order to fit what remains into recognized legal pigeonholes.  Then the other side might attack the complaint and succeed in removing or narrowing some of those claims, and the necessities of trial preparation may require the case to be simplified even further.  Lawyers and judges tend to think this is a useful process, because it folds a messy story into a tidy package that can be processed by the legal system.   And when they bring a case to mediation, attorneys may underestimate the work that remains to accomplish a settlement.  They often think that they have the dispute narrowed down so well that all the mediator needs to do is push the parties toward a point that lies somewhere in between the well-defined positions of each side.

Why on earth then, would a mediator want to explode their carefully-prepared packages, or as Lee Jay put it yesterday, to put back in some of the juice and extraneous ingredients that have been removed by the funnel?   One reason is that parties may never find that point of resolution until they have had a chance to express and address the concerns that still matter to them.  The legal system may have deemed those concerns extraneous, but often it is all those things that the clients want to tell their lawyers in their initial meeting that caused the dispute in the first place.  (See my prior post on underlying causes.)  If the parties could have resolved the case without putting all that juice back in, they probably would not need a mediator.  

So while trial lawyers may sometimes get frustrated seeing their careful work blown to bits by mediators, they need to understand that mediators sometimes get frustrated by being expected to remain within the confines of the neat little boxes that litigation creates. 

(Clip art licensed from the Clip Art Gallery on DiscoverySchool.com)

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