Vol. 7, No. 1, Pg. 21. Prepare for the Peacemakers.

• Author: By Capers G. Barr III

South Carolina Lawyer

1995.

Vol. 7, No. 1, Pg. 21.

Prepare for the Peacemakers

21Prepare for the PeacemakersBy Capers G. Barr III"The best General is the one who never fights."

--Sun Tzu

22Buried in the recesses of the trial lawyer's psyche is an awareness that modern trials evolved from a more primitive form of dispute resolution--trial by combat. The gladiator mindset remains. Its clarion call is to never yield, even in the face of severest adversity.

What? Settle this case? Never!

That is, until lawyers reach the courthouse door. By then, expenses have been maximized, positions have polarized and client expectations have been raised to problematic proportions. Lawyers settle, and their colleagues behind them on the docket and the judges and clerks administering it, scramble wildly to clear the next case for trial. All too often, that case falls to settlement as well, like one of Robert MacNamara's now non-existent dominoes. The jury venire sits, perhaps wondering whether O.J.'s panel suffered the same indignities.

The win-lose, trial-by-combat nature of the civil trial process does not easily lend itself to earlier and more orderly interventions to resolve disputes short of the finish line. Of course, early settlements do occur. But they are sporadic and unpredictable at best, so that court administrators must nevertheless overload the trial week calendar, knowing that many of those cases, as well, will settle. A better way to process disputes is continually being sought.

At the same time, settlement negotiation is a natural aspect of the litigation process. Most trial lawyers want their cases to settle. Judges inevitably ask about settlement negotiations in pretrial conferences. Lawyers are required, in pretrial briefs for the court, to report about the settlement posture of the case. Ethical considerations also impose a duty to explore settlement options on behalf of clients.

Voluntary mediations are occurring in the circuit courts and the U.S. District Courts throughout the state.

When undertaken, settlement negotiations may conflict with the trial-by-combat ego--Never blink first could well be its maxim. The negotiations often partake of the bargaining strategy of the date vendor in the market at Marrakesh: "I demand two francs more than what I want or need, knowing that my buyer will offer two less than what he is willing to pay. Our minds may meet, somewhere in the middle." If the purveyor of dates is too shrewd a bargainer, if his negotiating skills exceed those of the buyer, he may actually chill a sale. The negotiation may fail because of the uneven bargaining skills of the players.

In the legal process, a negotiation may fail because of the mistrust and unrealistic expectations of the client, who is not a hands-on participant in the negotiation process. The client wants his or her day in court, and he or she is certainly entitled to it.

Supreme Court Adopts Pilot APR Rates

In early 1995, Chief Justice Ernest A. Finney Jr. submitted to the General Assembly ADR Rules mandating mediation and non-binding arbitration of virtually every case filed in the circuit courts of three pilot counties (Charleston, Florence and Richland) and for mediation of custody and visitation issues in the family courts of four pilot counties (Charleston, Greenville, Horry and Sumter).

Implementation is also contingent on approval of a funding request that would enable offices of the clerks of...