Last week, my daughter, my mother and I took a train ride together. Years ago, my mother added the ride from Toronto to Vancouver to her "bucket list." After finding a great sale for winter trips, we planned the trip and departed on January 29, 2018. Little did I know that I was about to learn a little bit more about what it might feel like to be a litigant in the American legal system.
A friend and fellow mediator, Jeff Molenda, often quotes John R. Van Winkle's book, "Mediation: A Path Back for the Lost Lawyer." In the first section of his book, "The Litigation Train," Van Winkle claims that at the end of the twentieth century in the United States our litigation system is broken and has to come resemble a long, expensive train ride.
Even with the discounted fare, our train ride reminded me of this metaphor. I’m a planner, and my mom’s over eighty, so I wanted to be sure to be carefully planned and provide as little walking and difficulty as possible. I planned everything to the last detail. Of course, I had the train tickets, which included a sleeping car and meals, but I also had a couple of days at either end of the trip planned out, including all meals and transportation.
My mother, daughter and I arrive in Vancouver after several days on the train.
Things started out perfectly, without a hitch. We boarded our flight on time to Toronto, arrived and had a very short pleasant journey to our beautiful hotel with our room ready at 2:00 p.m. We rested a bit, had a nice dinner and enjoyed the day, ready for our trip to start the next evening. Perhaps in the metaphor, the beginning of our trip was a bit like filing a civil complaint that starts the litigation process.
The morning of the second day of our trip, I checked my email before going for a short jog at the gym. The train was delayed seventeen hours due to the “equipment” not being here. That meant an extra night in Toronto. I was still able to take charge and was able to negotiate with the train line for two very nice rooms at a very nice hotel. I did realize that the expectation to attend a theater performance and to meet up with some friends with Vancouver might not be met. I was beginning to lose control.
When we boarded the train the next day, it seemed like otherwise, things would be okay. I accepted the delay but still looked forward to the journey and having a chance to explore the Canadian cities we would be stopping in. Like Van Winkle's litigation train, on this trans-Canadian train line, we had little control over what happened. Van Winkle described the litigation train, "The train went where the tracks went. Nowhere else. The litigation was remedy-specific; it headed to a pre-determined point. The engineer chose the track, and once the train started rolling, the passenger's opportunities to get off were very limited." (Van Winkle p. 3)
I had no control over where we went, how long the train stopped or what time we arrived. Via Rail, Like Amtrak shares the rail lines with the freight trains, who have priority. For us, that meant very long delays, sitting on the lines in place, waiting for our turn with nothing happening. It also meant that we had very few stops. In fact, I was only able to step off the train a couple of times. First in a remote area for about 5 minutes and secondly in Jasper, Alberta. In Jasper, I was elated to be off for a full 45 minutes! When we finally arrived in Vancouver, about 40 hours late, we sat for another 2 hours yielding to other cars to get into the station. I wondered if this is what it feels like to win litigation and then wait to see if the Supreme Court will overturn the decision.
Here, we were boarding the train after the only significant stop from Toronto to Vancouver. Writer John R. Van Winkle compares litigation to a train ride, where you have very few opportunities to stop.
Unlike a litigant in the metaphor, I had a very nice vacation, spending time with my mother and daughter and enjoying the opportunity to see beautiful scenery. But I also did have a good lesson tendered to me on what it feels like to be entirely out of control with what is going on and unable to direct anything. I was not driving the train, the engineer was, and I picked this trip fully understanding that this wasn’t a car trip when I stop when and where I want, but a train trip where the decisions are made by somebody else.
In my work, whether it be litigation, collaborative law, or mediation, I work hard for clients to avoid being on the "litigation train." We work hard for the clients to remain in control and be able to select where they want to go with their legal situation and how to decide on the best process to reach that goal. Even in cases that are filed and litigated, we work hard to keep the client in control, as much as possible, during the entire process. We can find more stops, more tracks and sometimes even another destination.