The Legal intelligencer - New Year, New View: Stepping Into Some Very Big Shoes
For many years my former colleague Chuck Forer regaled us with the travails of “Bob” a character through whom Chuck channeled the important lessons about how to practice Alternate Dispute Resolution (ADR) ethically and effectively. Unlike the often bumbling “Bob”, Chuck is an accomplished lawyer, arbitrator and mediator and a gentleman as well. Although Bob retired in 2023 when Chuck penned his last submission for this column, Chuck is still fully engaged in his robust practice. I had the good fortune to overlap with Chuck in law school and practice as his partner at a firm for several years. On behalf of all the readers of this column over the past two decades, I thank and applaud Chuck for sharing his wit and wisdom with us. He will be missed, and his are big shoes to fill.
I cannot replicate Chuck’s distinctive style and won’t create my own incarnation of a “Bob”-like character, although from time to time I may introduce some new characters of my own. I welcome the opportunity to share my perspective on ADR having participated as an advocate, client, arbitrator and mediator over my 40-plus years in practice. At this critical time with so much discord locally, nationally and globally, the value of Alternate Dispute Resolution cannot be underestimated. I will begin with a refresher on the basics – a review of what is encompassed by ADR for those who may not consider themselves practitioners in this arena although we all face and resolve disputes daily in our personal and professional lives. Whether you are negotiating with your school age children over doing homework, discussing with your spouse or partner upcoming vacation choices, or trying to persuade a contractor to complete repairs, you are engaging in a form of dispute resolution. In law practice, we usually focus on dispute resolution in the context of settling matters before or during litigation. But even those of us who concentrate on transactional work use dispute resolution skills to overcome impasse in deal negotiations, persuade regulators that our clients are in compliance, or coax clients to follow advice. There is a value to all aspects of legal work to appreciate the range and benefits of using alternate dispute resolution methods to protect and advance client interests.
So if ADR is not a part of your regular practice, what do we usually mean by “Alternate Dispute Resolution” and what does it encompass? ADR is generally used to refer to a range of methods by which parties resolve or settle their differences outside of litigation rather than submitting to judgment by a judge or jury. Although there are several forms of ADR, most of us are most familiar with arbitration and mediation, with arbitration being akin to scaled down litigation resolved by a decision maker or panel of decision makers selected by the parties. In contrast, unless the parties agree to a binding mediation, the neutral mediator does not reach a “decision” as arbitrators do, but rather a mediator endeavors to facilitate the parties reaching a resolution they can both accept. Even within those processes, there are also many variations. For example, if you are a sports fan you may be familiar with “baseball arbitration”, but you may unaware that it is not just limited to baseball. In this process, which arose as an efficient method to resolve salary issues between free agency players and teams, the participants agree to present evidence to a three member panel on the compensation to be paid to a player. Each side submits its proposed salary number. The arbitral panel must select one side or the other’s number and cannot select its own number. The panel need not explain the basis for its decision, which is final. If the parties agree, commercial and other disputes can also be submitted to this type of arbitration. Similarly, there are various types of mediation applied by a neutral to navigate parties to reaching a settlement in a dispute. Generally, we are most familiar with evaluative mediations, which are often conducted by a judge, someone designated by the court or selected by the parties. In this setting, most commonly followed in a traditional settlement conference, the mediator usually provides feedback to both sides on the risks of continuing to litigate and makes recommendations on potential outcomes. Two other styles of mediation that are less directive, may not be as well-known to those who do not actively engage in litigation. They are facilitative and transformative approaches. When applying a facilitative approach, a mediator attempts to improve the relationship between the adverse parties and well as resolve the dispute before them, but may not evaluate the value of the case for each side. In transformative mediation, the neutral takes an even less controlling role, encouraging the parties to direct the process themselves and to create their own options for resolution themselves. Some mediators use a combination of evaluative, facilitative and/or transformative techniques to facilitate a settlement.
Whatever method the parties use, there is one common theme that they all share – generally engaging in ADR is a choice. It is something the parties can agree to, but is usually not mandated. The biggest exception is court-mandated settlement negotiations or mediation. Also noteworthy, arbitrators and mediators do not always have to be lawyers or have legal training, particularly on a three-member arbitration panel where particular industry or financial expertise may be desirable in a highly technical case. Whether or not ADR is compulsory, it behooves counsel and parties to consider upfront how they will handle a dispute when one arises, as we know it inevitably will. Therefore, even practitioners who concentrate on transactional work should be familiar with ADR and how it might benefit clients when conflicts arise. At the beginning of a relationship – hiring a new employee, buying a business or contracting for services – the parties are usually optimistic that the relationship will be mutually beneficial. Unfortunately, given the burgeoning court dockets, it’s clear that things don’t always work out as everyone hoped. For that reason, it makes sense when making new commitments while parties are favorably inclined and not in conflict to consider how they would like to try to resolve issues if they arise later.
It is common for agreements to include contract provisions specifying the choice of law that controls and judicial forum in which litigation can be brought. However, it is usually preferable to try to avoid litigation, and a good place to start is by including provisions for resolving disputes before they devolve into contentious litigation. The forms of ADR that might be included can range from requiring parties to meet and confer to try to address differences, to mandatory mediation by an agreed neutral, to arbitration in a particular forum according to set rules. The parties can include language that is general or that is granular, such as including the qualifications for a neutral mediator or arbitrator, or whether their disputes will be submitted to a single arbitrator or a three person panel. There are benefits and burdens to each type of dispute resolution, but one of the most notable advantages of considering ADR upfront is that it affords the parties more control -- before they are in the heat of a dispute -- over the process by which any disputes will be addressed. ADR also gives the parties more options for preserving confidentiality in sensitive matters, where they may not want the publicity that can accompany litigation especially if the parties or the issues are high profile or the matters sensitive. For these reasons, a working knowledge of ADR is valuable for lawyers practicing in all fields to anticipate how parties are going to work out disagreements efficiently when they occur.
Before we adjourn, I want to invite readers to treat this as an advice column. If you have questions you would like me to address, challenges you face in practice, or positive or negative experiences with ADR that you want to share, please send them to me at firstname.lastname@example.org. I will attempt to tackle them in upcoming columns or share my thoughts privately, for whatever they may be worth. I hope we will engage in an ongoing conversation about how dispute resolution impacts our practice and how we can adapt to changes in the process.
Reprinted with permission from the February 6, 2024 issue of The Legal Intelligencer. © 2024 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.