Here’s a guy, a lawyer, writing a New York Times letter to the editors about Judith Resnick’s opinion piece questioning Delaware’s effort to provide (as long as you pay) secret courts to resolve your legal, um, issues. (Pronounced “issss-yous”.)
Aside from not really responding to Professor Resnick’s thoughtful piece, problem is, Brian Farkas, the letter-writer, is supporting programs that already exist:
Court-annexed arbitration and mediation programs are part of the solution. Not every conflict is best resolved through traditional litigation with lawyer-gladiators battling in public courtrooms. Indeed, some disputes are better handled in back rooms, with trained mediators or arbitrators who can help litigants resolve their conflicts privately, quickly and with dignity.
Our courts should embrace dispute-resolution techniques and find innovative ways to mix them into litigation.
Let me explain. First, Mr. Farkas is, as stated below his name,The writer, a lawyer, is also a volunteer court mediator in Manhattan and Brooklyn.
So maybe Mr. Farkas doesn’t have enough business as a lawyer, or isn’t much of a gladiator (who ever thought of lawyers as gladiators???) and is promoting his mediation services.
But more importantly, there are already well-established mediation and arbitration services (here are links to the American Arbitration Association and JAMS) and at any point in a legal action lawyers can recommend to their clients the possible advantages of using these services rather than ploughing through an entire case. So Mr. Farkas has set up a straw dog with which he’s sparring. (Whack that straw!)
Moreover, a judge can send both sides for court-assisted mediation, if he or she deems it appropriate. (Although really I can’t imagine any judge sitting on a bench be-moaning how exhausted and overworked he is, and saying, “Gee, I just don’t have the energy to listen to you so — off with ye to mediation!”)
So if judges are truly over-burdened by doing their jobs, i.e., sitting on the bench and deciding cases — or, more likely, want two sides to give mediation a try — they can already do it. Mr. Farkas seems to be suggesting, unless I’m reading this wrong, that there should be some sort of civil procedure law mandating that certain cases (and who’s going to be evaluating what cases?) go to mediation.
That would take out of my hands what I consider my right as a plaintiff to make these decisions for myself. So sorry, Mr. Farkas; I didn’t elect you to strip me of my right to have a judge decide my case.