How to Use Adr Procedures in a Law Practice
| Publication year | 1990 |
| Pages | 1799 |
1990, September, Pg. 1799. How to Use ADR Procedures In a Law Practice
There are many examples of how alternative dispute resolution ("ADR") procedures have been used to resolve disputes faster, cheaper and more creatively than if ADR had not been used.(fn1) In addition, even when the use of ADR does not result in settlement, its use can still be beneficial to educate the parties about the dispute and to narrow the scope of the dispute.
Despite the effectiveness of ADR, it is greatly underutilized. One reason is that ADR is a new concept for most lawyers. Because they are not accustomed to thinking about it, they often do not consider how to apply it to their cases. This article suggests ways in which attorneys can increase their use of ADR in their practices.
When drafting a commercial agreement, an attorney should always consider whether to include an ADR provision and, if so, what kind. For example, an attorney should consider whether the agreement should provide only for arbitration or whether it should first provide for mediation, and then for arbitration if the mediation is not successful.
An attorney always should consider whether ADR procedures are appropriate to use in a case before filing an initial pleading. The attorney should look at the applicability of both arbitration and non-binding forms of ADR, such as mediation.
It is important that clients involved in disputes understand ADR. This can be accomplished by discussing ADR with the client soon after he or she engages the attorney to handle a dispute. The attorney should describe the various forms of ADR, explain how they might be used to resolve the client's dispute effectively and contrast them with litigation. Another way to fulfill this objective, although less effective, is to give the client an article or letter that describes ADR procedures.
After discussing ADR with their clients, opposing counsel should talk with each other to decide whether to use ADR. The earlier ADR is discussed, the greater flexibility the parties will have regarding its use. Unfortunately, attorneys often are reluctant to broach the subject of settlement with opposing counsel for fear of appearing weak. In addition, a perception exists that the party initiating settlement discussions will fare...
To continue reading
Request your trial