A.D.R. movement supporters and skeptics alike often ask me, “Where exactly is this revolution you’re always touting?” and “How can I put it to work for my clients and me?” In this article, I describe a philosophy of A.D.R. practice development, as well as how to integrate that practice successfully within an existing law practice.Like most lawyers who entered private practice in the late 1970’s and early 1980’s, I observed a provider marketplace divided into two major camps: transactions lawyers and trial lawyers. Those who handled both types of legal matters tended to have strength in one camp or the other. Given the two major constructs, I chose trial practice as my focus, not just as the engine of my business but also as a personal calling. I devoted 10 years to learning as much as I could about civil and criminal procedure, proven trial tactics, and esoteric evidence principles.
A.D.R., still in its formative years, was a distant second in my professional work. I favored its use, received specialized training as a mediator and arbitrator, but did not know how to access it for “traditional” clients. I also believed that most practitioners were unwilling to consider its use, so I rarely asked adversary counsel to consider it.
In the mid-1980’s, I moved toward a model of legal practice that came to be known across the country as “holistic lawyering”. In that model, the practitioner identifies the client’s real life context regardless of the presenting legal issues; asks the client to take responsibility for solving his or her problems; and creates a team approach to fostering resolution, including legal problem-solving. I simultaneously saw a client-driven demand for A.D.R. that began in the corporate sector and slowly spread to the general public’s consciousness, mostly by word of mouth.
In the early 1990’s, I consciously began integrating my advocacy-based practice with my work as an ADR neutral, which I saw (and still see) as the next logical and worthy step in “holistic lawyering”. The link between the two concepts resides in the skill of a negotiator, that is, someone who communicates powerfully and effectively to meet his, her, or another’s needs. In an era of shrinking public resources, the public court system has begun to play a decreasing role in direct dispute resolution, and the lawyer’s role has been redefined as that of primary dispute resolver.
Legal practitioners and clients talk a lot about getting cases to trial because that is the mental construct with which all of us were raised. Social science would classify that view as a paradigm; a way of looking at the world that is accepted as the way things are supposed to be. In our society generally, and among trial lawyers in particular, getting one’s “day in court” is considered normative, bordering on the religious. It surprises many people, including some lawyers, to learn that most of society’s disputes are resolved without filing a lawsuit, and that 97% of the cases filed in the public court system are settled before they ever get to trial.
After a decade of emphasizing litigation advocacy over ADR, by 1990 I realized many of my clients were unhappy even in cases I thought we’d won; clients who lost or felt they had were embittered and resentful; and I was unhappy in my role as supporter of a system that did not serve most clients’ real needs most of the time. The litigation system had turned out to be a time-consuming, expensive, and frustrating proposition, calling to mind Abraham Lincoln’s advice that the nominal winner often is the real loser in time, money, and emotion spent. My personal observations were reinforced by professional colleagues’ experiences as well as by horror stories and unflattering jokes in the popular media.
By 1990, it became obvious to me that I had good reasons to emphasize negotiations and ADR advocacy as “a better way to go”. For cases already in the court system, effective negotiations represented a 97% solution while waiting for a 3% chance of trial. For the vast number of disputes that never got to court, a combination of good negotiating and ADR advocacy produced consistently good outcomes at a fraction of the time, expense, and aggravation of the public system.
Over the past 7 years, I have been rewarded professionally and personally for creating a vision and making it real. Today, less than 20% of my client matters require “hard core” litigation advocacy, although they continue to take up a disproportionate amount of time and resources. About one-third of my cases involve negotiations in progress, where neither party has filed a lawsuit. These disputes have a high likelihood of settlement or will go to an ADR process for final resolution. About 50% of my open files involve matters in which I serve as an arbitrator or mediator, screened for conflicts of interest under the Rules of Professional Conduct for attorneys.
Lawyers who integrate A.D.R. within their practices will notice that clients in all three practice areas – negotiations, litigation, or ADR matters in which the lawyers serve as neutrals – appreciate the following combined skillsets:
- Litigation clients want A.D.R.-conversant lawyers who have a reputation with judges and adversary counsel as constructive problem-solvers who are ready to explore appropriate ADR options and who are prepared to take matters powerfully to a litigated conclusion if the other party is unwilling to consider a fair settlement or an ADR process that resolves the dispute short of trial. Clients become active team members in strategic planning, discovery, ADR process selection, and settlement negotiations. In contested proceedings, we ask for clients’ ideas, feedback, and constructive criticism, since clients have to live with the results of our work.
- Negotiation clients take comfort knowing that such lawyers will advocate their interests zealously without brandishing the litigation stick unnecessarily or provocatively. Litigation is available if we need it, but most often we achieve superior results without litigation’s attendant risks, costs, protraction, and aggravation. Before negotiations begin with the other party, we focus on improving our clients’ negotiating position, which reduces our clients’ dependence on the negotiated outcome and correspondingly strengthens their negotiating position. We also gather as much data as may be necessary to allow our clients to make a full and informed decision about settlement options, offers, or counter-offers. Finally, we make recommendations for their consideration, while making it clear that the client gets the final word on settlement acceptance or rejection.
- Arbitration and mediation clients like neutrals with a “real world” understanding of the adversarial model, since so much of a neutral’s work is done in the law’s shadow. In these assignments, the neutral must bring insight, integrity, and practicality to the table. When specific subject matter expertise is required, the neutral should encourage the parties to cooperate in selection of neutral experts, or offer to select them. My general approach is to help parties efficiently resolve their matters, promoting “win-win” outcomes when possible and calling “win-lose” results when required.
- The A.D.R. field has brought transactions lawyers and advocacy lawyers together as never before, since A.D.R. mechanisms constructed by one have to be interpreted and implemented by the other. There also is an important role for each set of competencies in the post-dispute A.D.R. setting, where mechanisms are created after a dispute arises.
- A cottage industry is developing for A.D.R.-receptive lawyers as coaches and consultants to businesses, families, and individuals. Multi-disciplinary approaches to dispute avoidance, conflict detection, collaborative decision-making, dispute systems design, and organizational development will yield treasures for those professionals who are willing to create and embrace this brave new world.
Within my own practice, I continue to track negotiation- and litigation-based results, and have noticed two key trends. First, I consistently settle many cases on terms far superior to results I used to litigate to achieve and at a fraction of the time and cost previously involved. Second, I am able as never before to diagnose the dimensions of a client’s disputed matter and design a strategy for a successful outcome. In performing that function, I pay close attention to the client’s (1) financial and human resources and constraints, (2) temperament, and (3) attitudes toward conflict. Before helping a client chart a particular course, I perform a corresponding evaluation of “the other side”.
For example, when faced with a client’s stated need for an emergency court application, I evaluate the risks and benefits of the court filing with and for that particular client. If the decision is made to file, we will take that action while clearly signaling (1) that we will treat the other party as worthy of respect, and (2) that our door remains open at all times to reasonable dialogue, constructive engagement, and joint problem solving.
This two-track litigation approach keeps clients focused on their true needs; encourages interest-based solutions on both sides; keeps the level of destructive behavior to a minimum (at least from “our side”); keeps attorney time and costs down or justifies their expenditure; produces qualitatively and often quantitatively better outcomes; satisfies clients’ legitimate need to know why the results are the way they are; and produces better relationships with opposing counsel, opposing parties, and, as applicable, judges and court staff.
Lawyers as ADR neutrals also should notice some positive trends. First, we should be able to help disputing parties define and narrow the real issues, including legal, factual, and emotional ones. In mediation matters, we do well to help parties clarify goals and objectives; articulate the other party’s point of view; encourage effective communications with the other party and with legal counsel; propose elegant and creative solutions whenever possible; and carefully memorialize proposed settlements. In arbitration cases, we should look to getting the parties’ and counsels’ cooperation; work with the administering staff to schedule matters promptly; produce interim rulings and final awards promptly; and give parties and counsel a sense of fairness in the context of informal proceedings.
Importantly, as a result of my changed practice focus, I have discovered a deeper sense of satisfaction in my work than I ever thought possible. I clearly and consciously see myself as a healer in all three practice realms and convey that sense to my clients and respected opponents alike (whether or not they reciprocate that respect).
Today, I call myself “a professional in dispute resolution,” that is, someone who serves clients as an advocate in negotiations, mediation, arbitration, or litigation, or as a coach for those clients who prefer to represent themselves but understand the need for technical advice along the way. I also serve, barring conflicts of interest, as a neutral mediator, facilitator, or arbitrator when called upon by parties to a dispute. Finally, I make appropriate client referrals in practice areas in which I am not conversant, comfortable, and/or licensed.
In sum, my practice focus has become that of a multi-disciplinary professional in dispute resolution. A core value of that practice is a commitment to act in ways that are unconditionally constructive, a concept first presented to me by Professor Roger Fisher of the Harvard Negotiation Project. It is a simple yet powerful approach to conflict and its appropriate resolution, an approach that accepts both conflict and resolution as natural and healthy parts of our lives as human beings, including our professional lives.
The point of shifting one’s practice focus by embracing A.D.R. is both fundamental and powerful. It allows us to create a future to live into, one that satisfies us professionally and interpersonally. The magic of transformative work is that it is transforming. For the fence sitters among us, I encourage a quick shift in the direction of A.D.R. For those who are interested but not active, I recommend swift action. And for the active among us, I ask for your renewed commitment. My commitment is that the promise of the A.D.R. revolution will be fulfilled within our lives, and that as a professional community we will be fulfilled by its success.