When Is Mediation a Good Choice for Your Client?, 0217 RIBJ, RIBJ, 65 RI Bar J., No. 4, Pg. 13
January, 2017
As general practice lawyers, we employ a variety of professional skills in helping our clients to handle their legal challenges. Among other things, we research, interpret, write, negotiate, argue and advise. It is safe to say most of us have grown comfortable with this skill set. We operate in a sphere of influence, the foundation of which is legal authority from many sources, including federal and state statutes, municipal ordinances, regulations, bylaws and years of judicial precedent.
Litigation is essentially our ultimate tool, offering clients a path, albeit an uncertain one, to achieve their objectives. Your engagement letter most likely covers the scope of work you are undertaking for your client and that may or may not include the possibility of litigation. Some - times the prospect of litigation simply looms and decisions are made to avoid litigation. If our client is sued, we take the first steps responsive to the litigation process to defend them and their interests. Conversely, when we believe we have exhausted all settlement possibilities, we bring suit on behalf of our clients. When we submit to the structured protocols of litigation in the courts, process thereafter is essentially predetermined and controlled by the rules of procedure and the calendars of the courts. The only near certainty is that a substantial investment of time, money and patience will be required to see a case through litigation and post trial disposition. Understanding this, litigation has the capacity to incite fear and dread in reasonable people.
Can you get your clients what they seek without the time, money and stress associated with litigation?
In its very broadest sense Alternative Dispute Resolution (ADR) is an “alternative to problem solving by power, the courts, violence or any other form in which one party’s inherent ad - vantages rule out a fair settlement.”1 ADR has evolved in the legal field to offer non-litigation alternatives to disputing parties. Generally speaking, ADR refers to one of many methodologies during which a neutral person helps parties resolve their case without a trial. The methodologies most often used include negotiation, arbitration and mediation, processes that have been employed in various forms since the time of ancient civilizations.
Commercial arbitration was utilized in the early Dutch and British colonial periods in New York City. Born of distrust for courts and lawyers, the colonists set up their own informal arbitrations to resolve community conflicts. It wasn’t until the 20th century that ADR was advanced as a litigation alternative.2 In 1920, Congress passed the Federal Arbitration Act, one of the most important aspects of which was to give courts the power to enforce arbitration awards. In the ensuing decade, over a dozen states passed arbitration laws. In 1926, the American Arbitration Association (AAA) was formed to provide guidance to arbitrators and parties and to this day is the organization that promotes business arbitration in the US.3
Most lawyers engage in some forms of negotiation. Many have had experience with arbitration, a quasi-judicial proceeding presided over by a neutral third party who acts as finder of fact and ruler of law, and who, like a judge, issues a decision that may or may not be binding. As lawyers, we often have input into the selection of an arbitrator. The process can be attractive as it promises cost and time savings, as well as other efficiencies. It may be faster, less stressful and more private than court proceedings. It is common for many contracts to include arbitration clauses designating it as the...
To continue reading
Request your trial