Lawyers in civil cases, even adversaries, can usually agree on at least one thing: Litigation tends to be lengthy and expensive. Their clients may also share that opinion, and they are stuck with the costs. Members of the New York City Bar Association said in a report released on Wednesday that's not just something to complain about: It's undermining the fair administration of justice in New York, as those who do not have deep enough pockets to litigate a case to the bitter end may be forced to live with unfavorable results. But not all hope is lost, the City Bar asserted in the report. Courts, attorneys and litigants can all take steps to prevent civil cases from becoming pricey boondoggles, such as evaluating disputes on the merits early in the process, even before a complaint is filed; and supporting—or, in some cases, mandating—mediation to resolve cases. “Parties also often settle disputes, without the benefit of any judicial input on the merits, only after expenditures of substantial legal costs that could more productively have been spent on bridging gaps and achieving earlier negotiated resolutions,” said John Kiernan, a partner at Debevoise & Plimpton and the immediate past president of the City Bar, who last year convened a committee to study how disputes could be resolved more efficiently. “These inefficiencies contribute to overburdened court dockets and client dissatisfaction with the dispute resolution process.” The City Bar also recommended that the court system adopt rules for inquiring of counsel and for monitoring the litigation process with an eye for reaching settlements or rulings in a timeframe and at a cost that are proportionate to the nature of disputes. The City Bar also is asking attorneys to eschew litigation tactics like asserting defenses and appealing nondispositive decisions that could unnecessarily delay cases and burden the parties. And as for the litigants themselves, the City Bar says they should be actively involved with their cases, not treating them as a “contest left to counsel with instructions to pursue victory.” “For many clients, those considerations are not part of their first attitude toward a dispute,” Kiernan said. “The first attitude is hiring a lawyer who can eviscerate the other side.” How did we get here? According to the report, during the 1930s, the idea that there should be open discovery in civil cases rather than litigating by surprise helped drive the adoption of the Federal Rules of Civil Procedure. Over time, New York and other states replicated provisions from the Federal Rules and the courts evolved to discourage the early disposition of claims without a full factual record, thus slowing down the pace of cases and growing court backlogs. Exacerbating the issue, the report states, is the fact that lawyers are trained to see tracking down all the facts and pursuing all legal theories as a mark of excellence, which may lead some practitioners to pursue extensive discovery or claims with limited promise of a return on their investment. Litigants, lawyers and the courts should also see the advantages of early mediation in cases and not see it as an intrusion to gathering the facts. While using mediation is relatively common these days, the perception of resolving cases through mediation has evolved in recent decades, Kiernan said. “If you go back 20 or 30 years, no one believed in mediation at all,” Kiernan said. “Hard-boiled litigators would ask 'What could I get from mediation as opposed to going nose-to-nose with the attorneys for the other parties?'”