Alternative Dispute Resolution – the Good, the Bad and the Ugly
By Frieda Gordon, Esq.
Many people come to us claiming to want to avoid Court, avoid the high legal costs and emotional expense of the trial experience and utilize ADR, or Alternative Dispute Resolution, to resolve the issues and their case. Many types of cases can properly utilize mediation or arbitration to resolve their issues without a court trial. Family Law and Probate are, in particular, commonly areas of the law in which ADR may be the best method of resolving the issues, especially, since the court system has been so severely curtailed due to the economic problems plaguing the court system in the state.
However, what people tend to forget is that the reasons that brought you to the point of disagreement, are often the reasons that will keep you from resolving your matter easily with an impartial third party, especially if you choose to be unrepresented in such proceeding. Very often the parties are not of equal stature in one sense or another. One might be better able financially to make decision without regard or with little regard to cost. Sometimes the parties are of different educational backgrounds or expertise in certain important areas. Sometimes, there is great conflict over control over the children or control over the assets. Sometimes, there is domestic violence involved. Sometimes the fighting between siblings or intergenerational disputes are so seriously out of control that the use of a mediator who knows little about those particular problems and cannot advocate for any side, is not only useless, but damaging, both to the spirit and the financial purses of those involved.
It is hard for an attorney who is experienced in mediation, collaborative law and arbitration to advise the client that ADR may not be right for them. This is not just because the attorney may not wish to seem to be advocating vigorously for a forum that would force the parties to litigate to the hilt in an attempt to earn more money from such representation. On the contrary, it is much better for an attorney to have a satisfied client and earn less money knowing that he will be paid than to have a huge bill that the client cannot or will not pay and for which the attorney cannot go after. So, therefore it is in the attorney’s best interest to look for the best way to resolve the matter that is the most cost effective and will be the most satisfying to all Parties, because satisfied clients will refer other business and will pay their bill.
Given the above rationale, I want to reiterate that only in rare circumstances is it necessary or important that the Parties attempt mediation rather than simply hire a good lawyer with good negotiating skills who is also trained as a mediator and in collaborative law, who can move the case forward and understand the workings of the court, as well as give legal advice and keep the matter on course towards settlement rather than litigation. If you have interest in looking at the different ways that your matter can be concluded most reasonably, please come in for an initial consultation and we will discuss all options with you once we understand what the circumstances are. We look forward to serving you in the near future.