How the Mediation Profession Began: from Chief Justice Warren E. Burger, 1984 (Part 1 of 2)

Chief Justice Warren E. Burger

By: Donald L. Swanson

In days-gone-by, civil lawsuits commonly end in a judgment after trial or an appeal.

Today, civil lawsuits commonly end in a mediated settlement.

On February 12, 1984, Chief Justice Warren E. Burger explains some early history for such change, to a meeting of the American Bar Association.  His speech begins like this:

The response of the American Bar Association in our time to the needs of the courts and the American people is in considerable contrast to its response to a speech given 78 years ago by Roscoe Pound, a young man from Nebraska, who later became one of the great deans of the Harvard Law School.

At the meeting of this Association in 1906, he addressed “The Causes of Popular Dissatisfaction with the Administration of Justice.”  At that time, this Association . . . was an establishment-oriented organization quite satisfied with the status quo.  The leaders of the Association rejected Pound’s criticisms to the point that the Association initially refused to publish his speech.  . . .

Now we know it as a classic—so much so that eight years ago, our Association joined [others] to sponsor one of the more significant legal meetings in recent times. By design, that conference, which came to be known as the Pound Conference, was held in St. Paul, Minn., and was convened in the very room of the State House of Representatives and at the very lectern where Pound made his 1906 speech.

The response of the Association to that 1976 re-examination of Pound’s criticism was immediate, and you are familiar with the various programs which it generated.  One very important program was aimed at developing alternative methods for resolving disputes which now inundate all the courts of this country.

(Emphasis added.)

Chief Justice Burger added the following explanation in his speech:

We Americans are a competitive people and that spirit has brought us to near greatness.  But that competitive spirit gives rise to conflicts and tensions.

Our distant forebears moved slowly from trial by battle and other barbaric means of resolving conflicts and disputes, and we must move away from total reliance on the adversary contest for resolving all disputes.  For some disputes, trials will be the only means, but for many, trials by the adversary contest must in time go the way of the ancient trial by battle and blood.

Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people.  To rely on the adversary process as the principal means of resolving conflicting claims is a mistake that must be corrected.

(Emphasis added.)

The Chief Justice adds these observations toward the conclusion of his speech:

The entire legal profession—lawyers, judges, law teachers—has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be healers—healers of conflicts.  Doctors, in spite of astronomical medical costs, still retain a high degree of public confidence because they are perceived as healers.  Should lawyers not be healers?  Healers, not warriors?  Healers, not procurers?  Healers, not hired guns?

(Emphasis added.)

Part 2 of this series will highlight Roscoe Pound’s comments in his 1906 speech.

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