What’s the Objection? Why Lawyers Push Back Against Using Alternative Dispute Resolution (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,” and there may not be genuine interest in resolving matter except in court.
- By the time clients are meeting with lawyers, they are usually beyond civil communication.
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 or her job correctly, the mediator 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:
- The mediator will not provide legal advice.
- The participants’ legal rights may be affected by the outcome of the mediation.
- Each participant has the unrestricted right to check in with counsel at any time in the process.
- Legal counsel should be sought to review any mediated agreement.
Sounds like lots of lawyering is needed, indeed required. So before any participant starts ANY dispute resolution process, the participant should consider obtaining legal advice from legal professionals.
I wanted to introduce myself as the attorney who has been retained by [one of your mediation clients] to review, and comment upon, the draft settlement agreement that you previously prepared…. I have been practicing matrimonial law for 34 years in Northern Virginia, and I told [our mutual client] that I have never seen a more thorough and professionally-drafted settlement document. I feel compelled to simply inform you of my personal belief that you have constructed a marvelous agreement for both parties; and can rest assured that your name has now been put at the very top of the ‘mediator referral list’ for all four attorneys in this law firm. — David Duff, Esq., dufflawfirm.com
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 disappointed.
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 more traditional methods. And introducing your client to a method that can save time and money supports the ethics lawyers have promised to uphold.
I first encountered Danny Burk when one of his clients asked me to review a property settlement agreement that he had drafted. It was an impressive document, highly organized and thorough. Since that first meeting, I have both referred clients to Danny and assisted other of his clients in the mediation process. While most divorces call more for reconciliation skills than financial acumen, Danny has the ability to deal with the most sophisticated and complicated financial situations. He is a very accomplished mediator, and clients I have sent his way have uniformly praised his skills and results. — Kenneth Gubin, Esq., gubinlaw.com
Need More Information?
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.
To learn more about how we can help you and your business, please use our Contact form or call us at (703) 668-0344. We can discuss different ADR methods, which ones may be appropriate for your client, and help you find a mediator or arbitrator if appropriate.
Our Child & Spousal Support Calculators:
Resolution Point offers remote mediation services at no extra charge when parties can’t be in the same room due to schedules or other conflicts:
- ▪ 4-way phone conference calling
- ▪ Video conferencing
- ▪ Internet connectivity which allows parties to watch everything remotely on their computer screen as it’s happening in our office.
WHAT OTHERS SAY
“Mediation allowed us to work through issues we were previously unable to do in such a way that everyone felt heard and respected. Before working with Resolution Point I did not know much about mediation as a resource for divorce, but after our experience I would highly recommend it.”