The Client and ADR

Although many of the readers will likely be lawyers or people associated with the legal profession, it may be helpful to assess ADR from a nonlegal viewpoint.

Some lawyers and social scientists who study ADR from a psychological perspective urge a “client-centered approach” to dispute resolution.

Lawyers tend to deal primarily with only certain aspects of a legal dispute. Questions such as, What is the issue? What is the law? Who are the proper parties? are the kinds of preliminary, or underlying, issues that a lawyer generally considers.

Deeper Motivations
Psychologists, and many mediators and negotiators, point out that parties to disputes often have deeper motivations that relate to what they consider important in the dispute.

Former Chief Justice Warren Burger once observed that:

“The entire legal profession– lawyers, judges, law teachers have become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be healers– healers of conflicts. Doctors, in spite of astronomical medical costs, still retain a high degree of public confidence, because they are perceived as healers. Should lawyers not be healers? Healers, not warriors? Healers, not procurers? Healers, not hired guns?”

Client’s Objectives
Mosten and Redmount analyzed what they call the “objectives” of the client and commend those to the lawyer’s consideration in evaluating the advisability of using ADR rather than litigation. They listed eight indicia of client disinclination toward litigation:

• The client may be uncomfortable with contentiousness, or may fear the consequences.
• Given the state of legal delay and perhaps procedural complication, the client may wish to save time and get to a resolution more quickly.
• The client is wary of litigation because it may threaten the continuity sought in business relationships.
• The client is simply more comfortable personally with one kind of dispute resolution mechanism than another.
• The client contemplates saving money by using less involved, less extensive, and less complicated procedures than litigation.
• The client, being intelligent and articulate, wants to participate more personally in the resolution of his or her affairs.
• Clients whose own professional or business operations are orderly, rational, efficient, and reflective might prefer a method of dispute resolution that comes closer to operating in a highly rational, efficient way.
• Some clients are most disposed toward harmonious relations and would prefer to “undo” the effects of acrimony and dispute.

These indicia are the same kinds of signals that an experienced mediator would look for in disputants to assess the best methods of helping the parties resolve their dispute.

Lawyers have long put themselves in the place of judges to assess the legal merits of their clients’ cases. No responsible lawyer would take to court a client who is physically or mentally unable to endure the stress of litigation or, conversely, who is pathologically needy of such stress.

Detached Appraisal
The same skill of detached appraisal is required of any lawyer who would consider the use of ADR. He or she must be willing to adopt temporarily a mediator’s outlook on the parties, the issues, and the history of the dispute, and to assess what is possible and advisable from the point of view of the client.

These considerations are relevant to disputes involving institutions. The lawyer acting for the institution must be aware that, no matter what the legal nature of the entity, the clients are individuals subject to the range of human motives and feelings.

The institution may be its board, its officers, its management, its employees, its shareholders. All of these may be involved in any dispute.

In some cases, these factors are referred to as the “internal politics” of the institution. They may be significant factors that determine attitudes toward the legal dispute.

Nonlegal Issues
In discussing introducing ADR into a corporate setting, one commentator suggested that a corporate dispute-screening process should take into account nonlegal issues, such as who the parties are, their view of the background against which they view the dispute, any internal or external politics that may affect a party’s behavior, and the underlying needs and interests of the parties and individuals involved.

Giving clients control of outcome
Of course, most first-rate litigators are adept at character assessment. This is one of their strengths. Some litigators may tend, however, to be less sensitive to the human values and interests at stake in what may seem to be a merely commercial dispute.

Good lawyers understand the value of talking to their clients, of exploring what they really want to achieve. ADR facilitates this inquiry because it gives the client more control of the process. This is most true of negotiation, conciliation, and mediation–the least formal and most voluntary of ADR processes.

Mosten and Redmount stress client control over the outcome of the dispute as the central issue distinguishing ADR from litigation.

Power Brokers
Mosten and Redmount argue that litigators are “power brokers,” given their access to the compulsory powers of the judicial system and their superior knowledge of its workings. They contend that when the matter is in effect turned over to the lawyer for resolution, or when the client is intimidated by the lawyer’s expertise, there may be little chance that ADR will be recommended or considered.

Given the fact that many clients are becoming more educated and more knowledgeable about legal matters, it may become increasingly likely that the client may wish to retain some of the control over dispute resolution.

Living with Outcome
It is even more the circumstance when the client must live with the outcome of the dispute, such as in disputes with current customers, local groups or institutions, or current employees.