Business people hate litigation. Loathe it. Fear it. They know it as it is--scary, expensive, unending, a drain on their time, their staff, their resources. The uncertainty of it skews projections and profit forecasts and drags down productivity. It casts business people into an unfamiliar world, with its own sense of time, its own jargon, its own rules, and its own decisionmakers. Yes, business people hate litigation. So why, then, do we as lawyers--to whom our business clients look for legal guidance and leadership--continually write business contracts (1) with the same tired clauses regarding venue, jurisdiction, choice of law, and prevailing party attorneys' fees? Why don't we start steering our business clients away from litigation? Why not start writing business contracts that provide for presuit mediation? Presuit mediation is the next wave of alternative dispute resolution (ADR), the sleeping giant that can revolutionize the way business disputes are resolved. We as lawyers know that many courts insist on mediation at some point in the litigation process, (2) but why wait? It's time for The Florida Bar to show leadership on this issue and make a serious and honest effort to promote a more cost effective and peaceful solution to business disputes.
