By Nancy Welsh. 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue)
This author welcomes responses to this abstract and the upcoming article. The author may be contacted at:
- E-mail: nxw10@psu.edu
- Phone: (717) 241-3508
Abstract:
Lawyers’ bilateral negotiations, rather than trials, resolve the vast majority of the civil actions filed in courts in the U.S. Some commentators decry this development, while others argue that the drafters of the Federal Rules of Civil Procedures intended to provide disputants with the tools needed to resolve their own disputes. From the latter perspective, a self-sufficient and democratic people (and the legal profession that has developed to serve them) should be expected to take the initiative to identify alleged harms, communicate with each other about them, listen to each other, review necessary information and ultimately attempt to reach customized solutions. The advantages of court-encouraged negotiation, however, must be understood in comparison to the “normal” or “default” procedures offered by normal life on one hand, and the courts’ civil litigation process on the other hand. Since the 1980s, courts in the U.S. have offered the following key default procedures: judicial settlement conferences, summary judgment and trial. Court-connected mediation—a form of assisted negotiation–has joined these procedures within the last decade as another key default. Indeed, due to concerns about the cost and time required for discovery, courts increasingly are ordering disputants and their lawyers to participate in mediation before discovery or after the completion of “bare bones” discovery. Research, meanwhile, has demonstrated substantial settlement and client satisfaction with this process and its outcomes. Some commentators are now advocating for negotiation as a condition precedent to the filing of a civil action. Presumably, courts would need to provide for some sort of sanction or adverse inference if parties refused to attempt or respond to such negotiation.
Ashcroft v. Iqbal and Bell Atlantic v. Twombly, however, reveal that the comparative value of communication, negotiation, mediation and other forms of early and autonomous dispute resolution changes dramatically if the courts replace liberal notice pleading with an ambiguous yet demanding requirement of “plausibility.” For example, Conley v. Gibson and notice pleading more generally gave otherwise-marginalized civil rights claimants the ability to access both otherwise-inaccessible information and the courts’ coercive power. In order to manage the risk created by the availability of such access, lawyers often counseled powerful institutional defendants that they should meet with claimants, listen to their concerns, and ultimately communicate and negotiate with them. This is why so many cases have settled in negotiation and mediation. Some defendants have even developed internal dispute resolution programs. If marginalized and unpopular claimants now must satisfy trial and appellate judges’ “common sense” judgments that their allegations are sufficiently “plausible,” institutional defendants face a substantially-reduced risk that the claimants will gain access to information or courts’ power. Why then should these defendants devote time, energy and other resources to meet, listen, communicate and negotiate with parties who are unlikely to be able to pursue their actions in court? Why should these institutional defendants provide any opportunity for redress at all?