The following guidelines can help you reach an out-of-court settlement and come up with creative and mutually beneficial solutions to your disputes, with or without lawyers at the table. Make sure that the process is perceived as fair. The high cost of resolving disputes has several causes, but the most important is the mentality established and nurtured by the adversary system. The essence of this system is that lawyers for opposing parties have a responsibility to present all evidence and present all legal arguments that may benefit their clients.
Pre-trial discovery and other litigation procedures are designed to leave no stone unturned in the search for relevant evidence. Through training, temperament, professional duty, and often client expectations, lawyers tend to exploit these procedures to the fullest and persevere as long as there is any hope left. In fact, every lawyer has an obligation to be as zealous an advocate as possible, even sometimes, especially to the detriment of discovering the truth and resolving conflicts to the satisfaction of both parties. The idea behind the adversarial system is that the truth will emerge when opposing parties present their cases as aggressively as possible.
Although this ideal is not always met, the principle is probably sound. The problem with the adversarial method in civil cases is not theoretical but practical. First, it's not the most effective way to resolve some types of disputes. Second, it can be made more effective for most types of disputes by borrowing some of the non-conflicting features of other forms of dispute resolution.
Thirdly, both socially and individually, we may no longer be able to afford it in its undiluted form.
