ADR suggests a strategic approach to dispute resolution that incorporates strategies to avoid disputes and the full range of options to resolve disputes once they arise. The process of designing systems to avoid and manage disputes.
Lawyers and Law firms can now use the MCN tools, resources and services to provide early solution to their clients and avoid them pain of litigation, dispose of disputes early, retain the benefits of privacy and confidentiality and, perhaps most important, achieve business solutions that serve the bottomline interests of their clients. Today, the changed mindset of Clients is to happily pay fees to their lawyers for settling disputes by the use of ADR, and more particularly, the use of new world approaches managed and administered by MCN.
The law firm that assumes a leadership role in providing ADR services gains a significant competitive advantage in the legal marketplace. An ADR department can help a law firm distinguish itself, or at least prevent the adverse inferences that clients or potential clients might draw if the law firm lacked an ADR practice.
In fact, the law firm of the future will have to be proficient in the use of ADR procedures to stay competitive and responsive to its client’s needs.
90% of disputes eventually get resolved using ADR procedures; should not every firm be having this strength as good as litigation?
LAW FIRM OR PRACTITIONERS CAN PRACTICE ADR IN SEVERAL FORMS AND WAYS-
Representing clients in specific ADR proceedings like mediation, arbitration and other processes is akin to practicing as a litigation lawyer. It is clearly one of the main revenue-generating practices. As a member of MCN, Law firms and practitioners can gain the confidence of clients through collaborative tools and resources and also through MCN’s managed and administered services for different kinds of disputes.
A transactional ADR practice includes the development and, where appropriate, effective use of ADR clauses in contracts and other agreements as companies are evaluating and discovering the combination of ADR approach most likely to successfully resolve disputes that might arise under each type of agreement.
Dispute resolution clauses should be inserted in early drafts of agreements where they can be given the full attention they deserve. Unfortunately, corporate counsel and their clients typically do not want to spend a lot of time negotiating which ADR provisions to incorporate in their contracts. They certainly do not want to spend time designing an entire ADR procedure.
Law Firms can assist in-house counsel in drafting more sophisticated mediation and arbitration provisions in connection with business transactions. Depending upon the transaction, a multi-tiered approach requiring neutral fact-finding, executive negotiations, and mediation as a predicate to either arbitration or litigation might be considered.
Law Firms are adopting the ADR approach as integration to their litigation practice and lawyers are playing a dual role of “litigation” as well as “settlement” counsel. The “settlement counsel” monitors ongoing litigation and develops early exit strategies and supports the litigation counsel as part of the litigation team.
Law firms are adopting an integrated approach for resolving major lawsuits with settlement counsel considered as part of the litigation team, with an analogous of “bad cop” “good cop” separation of roles, between specialized settlement counsel and the needed litigation counsel.
Settlement counsel is mostly an expert qualified in the science and art of interest-based negotiation. Ideally, they are also experienced in the techniques of mediation advocacy. They can bring unique skills to bear on a single, critical objective – early and optimal resolution of the dispute.
Businesses generally avoid litigation; it is only when sufficient disappointment, distrust, frustration, or anger combines that litigation occurs. It creates a trap whereby the law firm stays focused on the litigation war it was engaged to fight, while the client’s focus shifts from the war back to its business. The settlement counsel keeps monitoring the client’s changing interests and develops innovative strategies and tactics in order to better serve those interests.
Is it workable to run a parallel track with litigation and settlement counsel, who are different lawyers, from the same firm?
Such in-firm “competition” requires cooperation or it could be achieved with the use of MCN Experts at hand.
Closely related to the transactional ADR practice is the role of designing and selecting ADR procedures for both individualized cases and industry groups. Especially in the employment context, firms are developing ADR systems designs for preventing disputes as much as resolving them. Similarly business opts to design systems for disputes with consumers and other stakeholders. Such systems move beyond the “win-lose” environment of litigation to the full range of ADR options available to avoid disputes and solve a client’s problems. The key to designing procedures is to permit employees, consumers or other stakeholders to air grievances early, before they become full-blown disputes.
In addition to designing ADR processes, law firms counsel often function to help others in the firm and their clients to select the type of ADR procedure most suitable to a particular situation.
Although separate “branches” of ADR have been highlighted above, the law firm should not view an ADR practice as any one of these branches. Rather, the firm should consider its ADR practice as the entire “tree,” consisting of one or several branches. Standing alone, the ADR tree can be as or more profitable than other practice areas. Even if viewed as a “loss leader,” however, ADR may be a necessary practice area for a law firm.
Aggressive ADR is becoming an essential part of litigation, not something that is done instead of litigation.
Clients seeking litigation services are demanding that their outside counsel demonstrate ADR knowledge. Thus, ADR can often function as an activity that supplements litigation or transactional work, and makes such work more profitable. Ultimately, the marketplace will reward those firms that are competent providers of ADR services in all five branches of ADR.
If one concedes that law firms need to integrate ADR techniques into the meld of legal services offered to clients, how should they proceed?
MCN membership continuously helps law firms seeking to systematically include ADR in the dispute management services offered to clients. Law firms can:
ADR requires law firms to take a long-term view. Many law firms have been reluctant to embrace an ADR approach to dispute resolution. Some of these firms see ADR as an incursion into a significant profit center: litigation. Indeed, ADR’s greatest effect may be on litigation – but as a complement, not as a replacement. Clients increasingly demand an early assessment of the risks and costs of potential litigation and early development of a case management strategy.
Most clients want to consult with one law firm proficient in all phases of dispute resolution. Firms ill-equipped to provide advice in all areas, including ADR, will not get the litigation business of such clients in days to come.