HINSHAW, A. / / SCHNEIDER, A. / / COLE, S.
"As a law professor who teaches civil procedure and mediation, "Pursuing Settlement" reads like a history. Menkel-Meadow's uncanny accuracy in predicting the future, her prescient fears for where institutionalization of ADR might take us, and the remarkable continued relevance of her suggested reforms and accompanying experimentation combine to make an easy case for declaring her work foundational. She challenged us to consider "whether new forms of dispute resolution will transform the courts or whether, in a more likely scenario, the power of our adversarial system will co-opt and transform the innovations designed to redress some, if not all, of our legal ills." (p. 5) And she offered a qualified "no" to the query whether the growth and expansion of ADR within institutions has changed the consciousness of those who solve legal problems. What we now know With the benefit of 27 years of pursuing settlement in the shadow of litigation, what do we now know? Turns out, very little beyond what Menkel-Meadow presaged for us. Without question, I could now teach my entire procedure course using only case law decisions about disputed mediation issues (Coben, 2015). Exactly as Menkel-Meadow predicted, lawyers now routinely "use" mediation as the all-purpose excuse for all sorts of failures and omissions ranging from incomplete discovery and failing to designate trial experts to late-filed motions and untimely requests to amend pleadings (Cole et al., 2019, ch. 5).
