Americans Trust in Their Court System: The End of an Era?

The recent 2022 National Center for State Courts (NCSC) survey of public opinion reports a decline in public trust in courts.

Confidence in the United States Supreme Court dropped from 63% in 2021 to 53% in 2022.

Confidence in the State Courts dropped from 64% in 2021 to just 60% in 2022.

The decline in confidence in the United States Supreme Court may be explained, in part, by some of the recent controversial decisions issued by the high court.

The decline in confidence in the state courts finds its roots in several cumulated or alternative factors. That said, the questioning of the state court's ability to deliver equal justice for all is concerning as most cases start in local state courts and reach a resolution there. In other words, the local court is where an individual is most likely to file a lawsuit and seek justice.

Below is a synopsis of the key reasons mentioned in the NCSC study to explain why some Americans are losing faith in their court system. As a consequence, more and more people are considering mediation as the way to resolve their conflict instead of filing a lawsuit.

1). The court system's weaknesses

1.1) Cost - It is expensive to litigate. For instance, in divorce cases, attorneys normally charge on an hourly basis. According to Nolo Press, the average cost of a divorce in California is $17,500. In civil cases, the attorney is either paid on an hourly basis or receives a fee based on a percentage of the amount recovered in the case. Normally, the attorney fees would be 25% of the amount of the recovery if the case is settled before filing with the court; 33 1/3% if settled 90 days before trial; and 40 - 50% if the case goes to trial. In addition, the client normally pays all of the court costs, deposition fees, expert witness fees, and other costs associated with taking the case to trial.

1.2). Time - Before the pandemic, most cases made their way to trial within two years. The pandemic and court budget cuts have resulted in court closures, reduced staff hours, and burgeoning court calendars.

1.3). Complexity - Lawyers speak “legalese.” Many clients find the language confusing and difficult to apprehend. As a result, they do not always understand what is going on in their case which may generate stress and frustration.

1.4). Unfamiliar surroundings - Going to court for many people is an unfamiliar experience. They would rather not have to testify about personal or family matters in a courtroom full of strangers.

1.5). Not being heard - When people are involved in a dispute, they want to explain their side of the story. They believe that if they could just tell the judge what happened the judge would agree with them and they would win. They are usually very surprised to learn that when they have an attorney the attorney speaks for them and they are not permitted to talk directly to the judge.

1.6). All-or-nothing outcome. Everyone who goes to court believes they are going to win. While the concept of “win-win” is popular in our culture, this concept does not apply in court. One party will win and one will lose. If you are the winner, you will think that justice has been served. If you lose, you will feel that justice has been denied to you.

1.7). Appeal - No matter how the judge decides the case, there is always the possibility that the losing party will appeal the decision. An appeal from the trial court to the court of appeals takes about two years and if the case is appealed to the California Supreme Court it will take extra three years to get a final decision.

2). The mediation advantages?

As a reminder, mediation is usually defined as the intervention into a dispute of an impartial and neutral third party (the mediator), who contrary to a judge has no decision-making power. The mediator’s role is to assist disputing parties in voluntarily reaching their own mutually acceptable settlement to resolve their disagreement.

Let’s review the main reasons why approaching a dispute through mediation is different from going to court.

2.1). Cost - Mediation costs vary with the individual mediators but the cost for mediation is usually must less than court litigation.

2.2). Time - A mediation session can usually be scheduled within weeks versus many months for a hearing and usually two years for a trial.

2.3). Complexity - In a mediation, the resolution that is reached by the parties is entirely designed by them. Although, the parties need to understand the law and its limits, the purpose of the mediation is not to end up with a winner and a loser. Mediated agreements are facts oriented and aim to be practical to put in place, contrary to court decisions based on the law and jurisprudence. In a nutshell, creativity is not allowed in a courtroom but it is the cornerstone of most mediated settlements.

2.4). Unfamiliar surroundings - normally mediations are held in a mediator’s office. Since the pandemic, lots of mediation sessions are held virtually. Whether they occur in person or online, mediations are per se held privately meaning that no participants other than the parties and the mediator(s) will be allowed to attend the meeting.

2.5). Being Heard - In mediation it is the parties who will be speaking about their desires for resolution. Even when lawyers attend mediation sessions, they will only provide information regarding the applicable law but as long as the terms of the settlement do not contradict the law everything can be discussed and agreed on.

2.6). Outcome - Rather than an “all-or-nothing” outcome, the parties can explore many different and creative ways to resolve their dispute. No one will “win” but no one will “lose” either when a mutually acceptable settlement can be found.

2.7). Appeal - When a case settles in mediation there is rarely an appeal because each party has had the opportunity to participate in the settlement agreement.

To conclude, the court system has its flaws, and mediation might be an alternative dispute resolution you may want to consider before filing a lawsuit. Bear in mind that mediation offers the opportunity for the parties to resolve their dispute in a timely and cost-effective manner and, that the settlement reached will have been participated in by all parties. Don’t know what to do? Contact us, free of charge, and find out how we at MPSV can assist you in finding a resolution to your dispute.