Like all other professions, lawyering is becoming more and more specialized. As time marches on, so has specialization. Over the past twenty years or so, the new field of alternative dispute resolution ("ADR") has emerged. ADR is really a misnomer -- "alternative" means other than the courts, which most responsible people have always viewed as the last resort for resolving disputes between private parties.
While the notion that settlement is preferred to litigation may be as old as the law itself, the concept of ADR as a formal discipline is quite new. This discipline includes the study and analysis of human conflict. Students learn about conflict and personality styles, and how to integrate various assessment, intervention, and dispute resolution techniques. This emerging field is beginning to draw from other disciplines, including psychology and physiology. There are several major centers that research, study, and teach the resolution of human conflict through ADR. Some of the most famous centers are at law schools, such as at Harvard and Pepperdine University Law Schools. The Harvard Program on Negotiation has even generated best-sellers for the general public such as the ground-breaking works Getting to Yes, and Difficult Conversations.
Unfortunately, there are only a handful of such centers. In fact, classes in ADR were not even offered in many law schools until ten years or so ago. Even today, those classes remain electives in many, if not most, law schools. The primary focus of most law schools continues to be on the useful skills of how courts interpret the law, how to procedurally maneuver through the courts in lawsuits, and adversarial advocacy. Unless deliberately sought out by students, legal education minimally focuses on helping clients solve problems, let alone current ADR techniques.
While most ethical lawyers seek to avoid going to trial whenever viewed as possible, most also lack formal education or any breadth of experience in ADR. Most lawyers settle their cases in one of the time-honored adversarial ways of our parents: by reluctantly compromising from ideal or desired divergent positions, by overpowering those less sophisticated or powerful, or by having decisions or recommendations made by private "rent a judges" through arbitrations. While such methods were perhaps state-of-the-art fifty years ago (and continue to have their place today), knowledge has significantly advanced, and such methods are far less than optimal for most conflicts. The old methods often even contain the seeds for future conflict. Ironically, many routine actions by adversarial lawyers can have the unintended consequence of fueling conflict and making cases more difficult to efficiently settle. This is not intentional, but due to shortfalls in legal training and knowledge.
Like all people, when lawyers without formal ADR education hear about other ADR alternatives -- such as interest-based mediation and collaborative law -- they make assumptions based on incomplete information. Many hear the words and think it is the same as what they already do, or that such methods do not adequately help their clients. In fact, interest-based ADR differs substantially from what adversarial lawyers do, and can help clients reach significantly better resolutions than is possible in an adversarial process.
Perhaps in part because the legal profession is largely unfamiliar with interest-based ADR, many non-lawyer mediators offer services using interest-based ADR techniques. Additionally, it takes substantial education, time, and practice to gain skill in ADR techniques -- for most, the techniques are very much like mastering a foreign language. The best of these non-lawyer mediators are extraordinary individuals who bring enormous skill and great care to their work. However, there are also many mediators who inadvertently cause their clients legal damage, and who may be unaware of significant legal consequences and effects due to their lack of legal education and experience. And, clients may not be aware of the legal effects of their decisions, because mediators are generally prohibited from giving advice.
The various ways to address disputes can have significant legal consequences. Arriving at an optimal outcome may well require the substantive and technical skills and knowledge that an experienced attorney has. For example, there is often an agreement reached when people resolve their dispute. This agreement is a legal document that can have far-reaching repercussions, and which may require substantial technical know-how to properly draft so the agreement is clear, can be implemented, and does not have unintended consequences. The settlement may have built-in legal landmines that an attorney could point out; and, if not properly prepared, the agreement may not be enforceable. There are significant benefits from substantive legal advice.
The challenge for the consumer who seeks an interest-based resolution to his/her dispute is how to benefit from the substantive technical legal skills and advice of a qualified attorney, and also benefit from the ADR skills of a skilled practitioner in ADR techniques. Both skill sets take education and years of experience to master. Sadly, the most experienced lawyers are likely the ones least likely to have any formal education in ADR.
The challenge for the informed consumer seeking to resolve a dispute that has legal consequences is to find the best skill set (or combination of skill sets) for his or her needs. If the consumer wishes to pursue interest-based mediation, he or she should likely have an attorney (even one not trained in ADR) to provide legal advice, and to prepare legal documents. Better yet, the consumer will locate an attorney who has both substantial experience and skill in substantive law, and substantial education and experience in interest-based ADR such as mediation and collaborative law.
As ADR becomes more known, available, and regularly practiced in the legal community, this combination of skill sets will likely become more widely available. Until then, the consumer who wishes to most effectively use ADR processes too often faces a deficit in professionals in one of two categories: (1) competency in ADR skills that take years to develop, and (2) solid, sophisticated, substantive legal skills that also take years to develop. Until more gain both important needed skill sets, the careful consumer of dispute resolution services should try to learn as much as possible, ask potential service providers as many questions as possible about their experience and education, and to always abide by the adage caveat emptor (buyer beware).