LAWYERS' GUIDE TO MEDIATION
What's the Objection? (Why Lawyers Fight Against ADR
Lawyers have concerns about dispute resolution processes if the lawyers are not "front and center." Their complaints can include:
In the interest of resolving a matter expeditiously, clients may forego important legal rights.
- Disputes resolved in private forums do not provide precedential value for future disputes.
- Dispute resolution processes can be used by opposing parties as "fact-finding expeditions," where there is no intent to resolve the matter except in court.
- By the time clients are meeting with lawyers, they are usually beyond civil communication.
| "The surest sign that intelligent life exists elsewhere in the universe is that it has never tried to contact us." |
| --Bill Watterson, "Calvin and Hobbes" |
ADR Is Good for Lawyers' Business
For any dispute resolution process to work, the participants need to know where they stand going in. What are their legal rights? What are their legal obligations?
If a mediator does his job correctly, he will not provide legal advice or counsel of any kind. In fact, at the beginning of each mediation, the mediator should tell the participants that:
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The mediator will not provide legal advice,
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The participants' legal rights may be affected by the outcome of the mediation,
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Legal counsel can be present during the mediation, and
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Legal counsel should be sought to review any mediated agreement.
Sounds like lots of lawyering is needed, indeed required and welcome! So before any participant starts ANY dispute resolution process, the participant should consider obtaining legal advice from legal professionals.
| "A compromise is an agreement whereby both parties get what neither of them wanted." |
| --Unknown |
ADR Is Often Good For Your Clients
How many times have you gone to court on behalf of your client and had to return to report less than perfect results? The average says that at least 50% of the time, one party or the other is disappointe
Other dispute resolution methods, particularly those where self-determination is involved, result in solutions that are selected by your clients. There won't be a feeling of "if only my lawyer had..." or "I wonder if a different lawyer would have.
Mediation also gives your client a chance to get a positive result, but if it doesn't work, your client loses nothing and can go back to the more traditional methods.
And introducing your client to a method that can save time and money supports the ethics lawyers have promised to uphold.
| "The large print giveth, but the small print taketh away" |
| --Tom Waits, "Small Change" |
Need More Help?
You're familiar with all the ADR terminology. You know that your colleagues are using it successfully. You have a client who you'd like to recommend it to, if you only knew more.
Please email us or give us a call. We can talk about different ADR methods, which ones may be appropriate for your client, and help you find a mediator or arbitrator if appropriate.
One final thought. If you have a client who is considering mediation but needs coaching on how to get prepared (or if you need the preparation), we can provide that service. (Of course, we would not, thereafter, be the mediator for the actual dispute.)
Resolution Point is constantly compiling a list of "mediation-friendly" attorneys, that is attorneys who support their clients through mediation rather than undoing the hard work participants have already accomplished. If you consider yourself a "mediation-friendly" attorney, please call or write us. Our clients would appreciate having you on our list.
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