In law school I had the impression that Alternative Dispute Resolution was a practice area separate from litigation. Seemingly, there was a Chinese wall between the trial advocacy classes and ADR classes. After all, my ADR classes never discussed the techniques for cross-examinations, and my trial advocacy classes never discussed mediation or arbitration strategies.
The ABA Young Lawyer Division’s latest newsletter perpetuates that myth in an article entitled “Top Ten Mistakes Litigators Make in Arbitration.” Certainly, the article gives good advice in telling us what to avoid — serving excessive document requests, using delay tactics, not cooperating, not being prepared, introducing redundant testimony, and filing untimely submissions. However, that advice is equally applicable to litigation as it is to arbitration.
In my experience, the differences between litigation and arbitration are cosmetic.
Although arbitration proceedings are often described as being less formal than traditional litigation, this lack of formality does not mean that the preparation is any less. Substantively, each type of proceeding has the same objective — to resolve a dispute. To that end, the tasks that must be taken to ensure that the dispute is resolved in your client’s favor are the same — strategies need to be developed, facts need to be gathered, documents need to be collected, and witnesses need to be questioned. And, I also suspect that it is just as stressful for a witness being cross-examined in an arbitration proceeding as it is in a court proceeding.
Likewise, I view mediation as part of the litigation process rather than a separate “alternative” because courts often order the parties to attend mediation. Mediation is a useful part of the litigation process as it forces both the attorneys and their clients to focus on the strengths and weaknesses of their positions and also the financial impact of taking the case to trial. This exercise in analysis should be engaged in early and often throughout litigation, but sometimes a scheduled mediation is a necessary catalyst to get the parties to focus on the “bottom line” and truly assess the strength of their positions.
To those of you who are still in law school, I urge you to consider ADR classes not as a separate practice area, but as another weapon in your litigation arsenal. Learning how to use ADR methods in litigation will serve you well as you help your clients to reach satisfactory resolutions of their disputes.
As one of the ADR professors here, let me applaud this post. It’s great to hear from the trenches that what we teach–the importance of ADR processes–is useful regardless of the area of the law that you practice. In fact, as Mr. Murdock notes, we are not doing our students any favors to treat litigation and dispute resolution as separate practice areas. The skills that you make you good litigators–asking questions, preparing the case, figuring out an advocacy strategy–will also make you good negotiators and advocates for your clients in mediations, let alone be necessary in arbitration. And, the skills that make you good negotiators or mediators–prioritizing your client’s interests, understanding the other party’s point of view, careful listening, thinking creatively–will make you good litigators since you will likely be using one of these processes to settle your case before trial anyway. (Current estimates are that over 90% of cases settle before trial.) One last note–we are moving here at Marquette to more accurately call our classes and programs “Dispute Resolution” rather than “Alternative Dispute Resolution” because, now that these processes are used even more than trial, they are hardly alternative and we should be sending an accurate message to our students about the proliferation of DR processes in every practice area. Thank you Mr. Murdock for confirming that we are on the right path!