Exploring the Boundaries and Terrain of ADR Practice
The various forms of practice within the alternative dispute resolution (ADR) spectrum—and I would include within that spectrum the practice of collaborative law (CL)—lend themselves to a wide variety of styles. For example, mediation can range from transformative to facilitative to more directive. The purpose of this article is to describe cases in which the boundaries are indistinct.
Collaborative law. CL is a form of negotiation in which lawyers participate but agree in writing that they will not litigate the matter, and that if a negotiation impasse is reached, the parties will hire new counsel to take the matter to court. Among the hallmarks of CL are interest-based, problem-solving styles of negotiation; confi-dentiality; voluntary exchange of information; joint retention of experts; and respectful communications.
Like other forms of ADR, CL cases vary widely. In the paradigmatic CL negotiation, the parties and attorneys negotiate in four-way meetings in a nonadversarial manner. In some CL cases, however, despite the parties’ and counsel’s best intentions, the negotiations can become so protracted, positional, and adversarial that they are virtually indistinguishable from ordinary negotiation in a high-conflict case.
At the other end of the CL spectrum are cases in which the negotiations are so cordial and so collaborative that they resemble transformative mediation. In one such divorce case in which I served as CL counsel for the husband, my opposing counsel and I were astonished at how smoothly the negotiations proceeded. From the clients’ standpoint, the amicable nature of our discussions seemed natural; they did not see their interests as adverse. Their lawyers’ roles consisted primarily of helping to set an agenda of issues to be resolved, jointly documenting the parties’ agreements, and congratulating them on their successful collaboration.
This case looked a lot like co-mediation. One might say that this is dangerous territory, but it did not feel that way at all, and the outcome of the case speaks for itself. This case suggested to me that mediation and CL, at their boundaries, can look a lot like each other.
Adversarial mediation. At the opposite end of the mediation “spectrum” are those cases in which the parties have no prior relationship and few joint interests other than reducing transaction costs, such as a wrongful-death auto-accident case. In these cases, if the parties are at an impasse, they look to the mediator to be more like a judge or arbitrator and evaluate the likely outcome of the case if it went to trial.
In some adversarial mediation cases, an impasse in the negotiation leads the parties and counsel to ask the mediator to “switch hats” and serve as an arbitrator. It has been my experience that the parties and counsel in such cases are more likely to feel comfortable with the mediator as arbitrator than to hire a new person to serve as arbitrator for two reasons: (1) The mediator is already familiar with the case and does not have to be educated about it, thus making the arbitration a more cost-effective process than it would be with a new arbitrator; and (2) the parties and counsel feel that they can trust in the mediator’s even-handedness because they have seen his or her reactions to the legal and factual issues that have been addressed during the mediation.
In other cases, the parties and counsel agree in advance—even before the mediation has begun—that the mediator will serve as arbitrator if the negotiations fail. As numerous commentators have pointed out, such arrangements may rob the mediation phase of its full potential. But if the parties are making an informed choice, processes in which the mediator also serves as an arbitrator can be useful and demonstrate the extent to which mediation can “blend” with arbitration.
In the family law arena, a widely used form of dispute resolution—parenting coordination—brings to mind the Tennessee-North Carolina border inasmuch as the parenting coordinator straddles the line between arbitration and mediation. A parenting coordinator is used by the parties, usually in a postdivorce setting, to resolve any child-related conflict by first helping the parents to reach an agreement and then, absent an agreement, making a recommendation that is immediately binding on the parties. In a typical parenting coordinator arrangement, either parent may go to court to challenge the parenting coordinator’s decision but must pay the other side’s legal fees if the challenge is unsuccessful.
Mediative arbitration. I also have experienced arbitrations that felt more like mediations. In a series of 180 Dalkon Shield cases in which I served as an arbitrator, the relaxation of the rules of evidence—a characteristic, generally speaking, of arbitrations to one degree or another—was often, by agreement of the parties, so complete that some of the testimony presented in the case was not even relevant to the issues to be decided.
The claimants’ testimony in these cases often involved wrenching accounts of various physical ailments and the impact of these conditions on their lives. In most of these cases there was a $20,000 cap on damages, and therefore my task as arbitrator was primarily to decide whether the claimant had established causation because it was clear that compensation for the damages, if causally related to the Dalkon Shield, would reach the cap.
In these hearings, the Dalkon Shield Claimants Trust was not represented by counsel. Instead, to economize on transaction costs, nonlawyer advocates represented the trust and performed very competently, even though they had no formal training in examining witnesses. On the other side of these cases, the claimants sometimes appeared without counsel and therefore presented their highly personal evidence without the structure of legal advocacy. Even when the claimants were re-presented by counsel, however, the
representatives of the trust often permitted highly personal accounts to be presented without making arguments about the relevance of particular portions of the testimony.
The process described above was clearly adjudicative but borrowed heavily on elements from mediation insofar as the openness to emotional expression, empowerment, and recognition is concerned.
Tensions at the border. There is a disturbing tendency for ADR providers at one end of the spectrum to fear, and question the value of, the procedures used on the other side. For example, some CL attorneys criticize mediation as leaving divorcing parties vulnerable because divorce mediation often occurs in three-way meetings involving only the mediator and the parties, who therefore lack real-time legal advice. Some divorce mediators consider CL an oxymoron because, in their view, lawyers of any stripe add contention to the negotiation as a result of their ethical duty to advocate zealously on behalf of their clients.
These tensions disserve the public by failing to give due respect to the varieties of dispute resolution processes that are appropriate for differing situations. There is also a large percentage of disputes that are suitable, for example, for either CL or mediation—the former is often preferred for those issues where real-time legal advice is needed, and the latter is often preferred for parties who need to work on communication issues or child-related problems.
For More Information About the Section Of Dispute Resolution
- This article is an abridged and edited version of one that originally appeared on page 4 of Dispute Resolution, Fall 2007 (14:1).
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David A. Hoffman is a mediator, arbitrator, and collaborative law attorney at Boston Law Collaborative, LLC. He may be reached at firstname.lastname@example.org.