ADR and Other Options: Advising Your Clients

It never fails to amaze me. Educated professionals, usually of the legal variety, begin discussing the state of our civil justice system. A discussion of the adversarial system ensues. Debating what is wrong with it, or perhaps, (thanks to those 'half-full glass' types) ways in which it could be improved, is usually an animated segment of the discussion. Invariably, when I am in the room ' and I would guess most other times too ' the discussion turns to 'What else is there, what's better?'

The question of just what other options are available becomes most pertinent. Alternative dispute resolution (ADR) is mentioned, and generally there is at least a flicker of recognition, not always flattering, but often we do not have a clear idea or very much knowledge about what is available and how it works.

Now, you may ask, what is it exactly that's amazing me here? Well, it seems not only amazing, but actually somewhat mystifying that we educated legal professionals don't make it a point to have a much better grasp on what all our options are when faced with a dispute or a problem that needs to be resolved. Actually, it seems even more mystifying to me that we don't understand that it's not only our job to know but our responsibility, as well. This is the business we are in. I am a firm believer that attorneys have both a professional responsibility and an ethical duty to fully inform clients as to what dispute resolution options are available to them. This discussion and diagnostic analysis should take place up front, in most instances, before a lawsuit is filed, and it should include guidance in determining what makes the most sense given these parties and this dispute. Doing this allows us to fulfill our role as counselor at law. It also makes us more competent lawyers.

A number of states have determined that this 'counseling' function is critical enough to warrant that a lawyer's conduct in this regard be governed by an ethical canon or rule of professional responsibility. Disclosure to the clients of the alternatives is either mandated or prescribed as the best practice.

Adversarial litigation is not the only path to resolving disputes. We know this. Yet, how often, in our first meetings with potential clients, do we attorneys plainly state that fact? As a divorce or an employment lawyer, or as a construction or defense lawyer, for that matter,  what do we advise our clients? Do we routinely counsel on the availability or appropriateness of mediation or collaborative law? Do we discuss and clarify the different types of arbitration and the 'med-arb' hybrid? And, even more significantly, just how much do we know about the alternatives? Do we understand and can we explain the various processes, the mechanics of their operation, their strengths and weaknesses?

The litany of questions and issues that lawyers need to be aware of far exceeds my applicable word quota, but I'm hoping that the emerging picture helps crystallize the importance of this discussion. Attorneys must realize that they need to fully understand ADR options in order to inform and advise clients about them. Adopting standards or guidelines designed to help ensure that this happens would greatly benefit both the attorney and the client. It would serve to help attorneys better understand and better fulfill their professional responsibilities. In turn, this would foster clients who are far more vested, and thereby more confident, in both the process and the attorney selected.

There are those who might perceive this as yet another requirement, an additional burden for lawyers. Meaningful reflection will reveal that the use of a rule or canon to effectuate a system that values and fosters informed and meaningful process choices is intended and should be recognized as an enhancement of our legal process rather than a burden to our legal system. The benefit to all of us should not amaze anyone.

It never fails to amaze me. Educated professionals, usually of the legal variety, begin discussing the state of our civil justice system. A discussion of the adversarial system ensues. Debating what is wrong with it, or perhaps, (thanks to those 'half-full glass' types) ways in which it could be improved, is usually an animated segment of the discussion. Invariably, when I am in the room ' and I would guess most other times too ' the discussion turns to 'What else is there, what's better?'

The question of just what other options are available becomes most pertinent. Alternative dispute resolution (ADR) is mentioned, and generally there is at least a flicker of recognition, not always flattering, but often we do not have a clear idea or very much knowledge about what is available and how it works.

Now, you may ask, what is it exactly that's amazing me here? Well, it seems not only amazing, but actually somewhat mystifying that we educated legal professionals don't make it a point to have a much better grasp on what all our options are when faced with a dispute or a problem that needs to be resolved. Actually, it seems even more mystifying to me that we don't understand that it's not only our job to know but our responsibility, as well. This is the business we are in. I am a firm believer that attorneys have both a professional responsibility and an ethical duty to fully inform clients as to what dispute resolution options are available to them. This discussion and diagnostic analysis should take place up front, in most instances, before a lawsuit is filed, and it should include guidance in determining what makes the most sense given these parties and this dispute. Doing this allows us to fulfill our role as counselor at law. It also makes us more competent lawyers.

A number of states have determined that this 'counseling' function is critical enough to warrant that a lawyer's conduct in this regard be governed by an ethical canon or rule of professional responsibility. Disclosure to the clients of the alternatives is either mandated or prescribed as the best practice.

Adversarial litigation is not the only path to resolving disputes. We know this. Yet, how often, in our first meetings with potential clients, do we attorneys plainly state that fact? As a divorce or an employment lawyer, or as a construction or defense lawyer, for that matter,  what do we advise our clients? Do we routinely counsel on the availability or appropriateness of mediation or collaborative law? Do we discuss and clarify the different types of arbitration and the 'med-arb' hybrid? And, even more significantly, just how much do we know about the alternatives? Do we understand and can we explain the various processes, the mechanics of their operation, their strengths and weaknesses?

The litany of questions and issues that lawyers need to be aware of far exceeds my applicable word quota, but I'm hoping that the emerging picture helps crystallize the importance of this discussion. Attorneys must realize that they need to fully understand ADR options in order to inform and advise clients about them. Adopting standards or guidelines designed to help ensure that this happens would greatly benefit both the attorney and the client. It would serve to help attorneys better understand and better fulfill their professional responsibilities. In turn, this would foster clients who are far more vested, and thereby more confident, in both the process and the attorney selected.

There are those who might perceive this as yet another requirement, an additional burden for lawyers. Meaningful reflection will reveal that the use of a rule or canon to effectuate a system that values and fosters informed and meaningful process choices is intended and should be recognized as an enhancement of our legal process rather than a burden to our legal system. The benefit to all of us should not amaze anyone.