With the dawn of 2013, we inaugurate a new blog feature: themed discussions on topics that help you think about your practice and your skill set. Throughout 2013, you will find multiple posts from guest writers that consider and develop a monthly topic.
January is ADR month! Our question is this: Can ADR practitioners excel without honing their trial skills?
We pose this question as the reverse of the usual comparison between trial and ADR practice. It is often observed that a trial lawyer entering an ADR proceeding without training in ADR will miss opportunities that an ADR practitioner could create for the client. True enough.
Thinking more deeply, however, the key point is whether an ADR practitioner is prepared to be an advocate in the strongest sense, using well-developed witness examination and argument skills learned and practiced in a more formal environment. The talented practitioner uses those skills effectively and adapts them appropriately to the ADR process. How are well-prepared practitioners preparing?
Let’s start this series with a definitional review of ADR, or alternative dispute resolution (that is, alternatives to trial processes). The origin of these ADR models in the early 1900’s, advancing the values of speed and cost economy, met with resistance on the grounds that constitutional due process and justice guaranteed jury trials. When Congress passed the Federal Arbitration Act in 1925, those due process grounds for resistance ended and ADR processes have multiplied, particularly in the last 20 years. The most well-established types of ADR are negotiation, mediation and arbitration. Among those three, there have evolved various hybrid processes.
Negotiation simply refers to each of two or more parties (the self and the “other”) trying to persuade the other of its position and ultimately coming together with an agreed solution to a mutual problem. Negotiation can be as informal as deciding where to go to lunch with your spouse. Counsel are typically involved for disputes or deals that are more complicated, or specialized, or of a value critical to at least one party.
Negotiation and mediation are distinguished from trial as a method of resolution in that they lie completely in the control of the parties to the dispute. No third party makes the decision – rather the parties address the facets of their differences and attempt to reach an agreement that resolves some or all of the differences at hand. Negotiation thus forms a building block for many other forms of ADR.
In mediation, the parties enlist a neutral facilitator to assist them in what remains basically a negotiated resolution. The well-trained mediator helps the parties understand the problem, the interests of each party, and possible options for resolving the disputes. Mediation from outward appearances bears little resemblance to litigation. Formal evidence and witnesses are rarely examined on a record. The agreement is confidential and is reached by the parties involved, not the mediator, who has no decision making power. Further, mediation as a mandatory court rule governing the pre-trial process may look very different from a mediation launched by the private will of the parties, which itself requires their agreement to meet and discuss their disputes.
Arbitration is the most commonly used formal ADR process. An arbitrator, unlike a mediator, is typically given the power to decide the dispute. The process is more trial-like than mediation but still less so than a traditional trial. The smart, prepared lawyer, in handling an arbitration, will use the best skills of a trial lawyer when they are called on, and yet move fluidly among the ADR processes and goals with comfortable familiarity.
All of these ADR forms require that the lawyer involved is savvy, and ready with multiple skills, not the least of which is the readiness to use strong advocacy when needed. How best to learn the tools of the strongest persuasive skills? Some reflections on this answer are exchanged in this blog throughout January – stay tuned and join the conversation.
Upcoming posts on this topic will include:
You can comment below or join in the conversation on today’s topic in the NITA LinkedIn Group. And be sure to check back every Wednesday to follow the ongoing conversation!
Opportunity: send us your idea of topics for a future monthly bog series!
Opportunity: let us know if you are interested in posting as a Guest Writer!