Alinda P. Mema
A conflict ensues between two parties and after a much heated argument, the bomb is dropped, “You Will Be Seeing My Lawyers!” Often times what comes to mind when this phrase is uttered is a ‘game of thrones’ type scenario played out on the courtroom floor with Opposing Counsel wetting his pants the ultimate prize.
Thanks to Show Business, a fit enough Lawyer is often times painted as a somewhat ruthless warrior on a courtroom battle ground who would stop at nothing till he hits pay dirt. Not surprisingly, this has evidently played out into real life with people often times going for a Lawyer who is able to terrorize his Opponent.
At the end of the day, the facts of the case are not given top priority. What takes the day is the best argument! This mode of action has to some extent created a negative perception of lawyers as ruthless. We cannot deny that the Adversarial system, often times drives lawyers and their clients into adopting warrior like behaviors in order to win the case at hand.
The good news is that You Don’t Need To Be This Kind Of Lawyer, say hello to Alternative Dispute Resolution!
Alternative dispute resolution (ADR) refers to a variety of processes that help parties resolve disputes without a trial. Typical ADR processes include mediation, arbitration, neutral evaluation, and collaborative law.
Say goodbye to paper work, voice rehearsals for that heavy weight verbal knock down or the pressure of standing before a judge. You might think that am beginning to sound like a Sales Man but best believe that everything am selling right now is genuine and there is more!
ADR also guarantees you confidentiality where agreed upon unlike court cases that are matters of public record. It is cost efficient, a faster resolution than going to court, the parties involved get to decide on the resolution and the parties get to hear each other’s views.
Whatever the problem as pointed out, if it can be decided in a civil court or tribunal, ADR can handle this for you thus freeing up your staff, limiting the damage and getting better results for you.
Some examples of such type of cases include but are not limited to contracts/commercial cases, property and construction, employment, intellectual property, financial services, insurance and consumer issues.
However, it should be noted that ADR is not available for criminal cases which are dealt with by and on behalf of the State before the Criminal Courts. Often the decision making body may be called an adjudicator or an arbitrator but, since the decision making process is not voluntary, the process is not part of ADR.
According to Centre for Justice, with ADR, the most difficult issues can be resolved by negotiation or through modern arbitration sensibly and with the least damage to your business and reputation.
This all sounds pretty easy but one would ask themselves why ADR is not being considered as much as the Adversarial system with all the benefits it has to offer?
The truth, according to online sources, is that most Lawyers and hence the companies they serve still view ADR as the alternative rather than the primary or preferred method of settling disputes. Such companies see the procedure as a way of settling peripheral, less important disputes. In this way, the lack of belief in the system itself reduces its chances of success.
On the other hand, there are Lawyers who have in fact considered ADR as their first choice in settling disputes but are unfortunately still failing to reap its benefits. What then could be causing their failure?
Harvard business review argues that back in the 1980s, experts and executives alike heralded Alternative Dispute Resolution (ADR) as a sensible, cost-effective way to keep corporations out of court and away from the kind of litigation that devastates winners almost as much as losers. Over the next few years, more than 600 large corporations adopted the ADR policy statement suggested by the Center for Public Resources, and many of these companies reported considerable savings in time and money.
However, the great hopes for ADR faded quickly. Damage awards, legal billings, and the number of lawsuits in the United States continued to rise even for many of the companies that had embraced ADR. In fact, one study found that rather than reducing costs and delays, at least one form of ADR, court-annexed arbitration had actually increased them.
Well it turns out according to this source that ADR as currently practiced too often mutates into a private judicial system that looks and costs like the litigation it’s supposed to prevent. At many companies, ADR procedures now typically include a lot of excess baggage in the form of motions, briefs, discovery, depositions, judges, lawyers, court reporters, expert witnesses, publicity, and damage awards beyond reason (and beyond contractual limits) so obviously this make the goodies promised by ADR seem like a big fat lie!
Luckily, to make ADR truly work for you, you don’t need to start from scratch. There are a number of companies such as Toyota, NCR (recently renamed AT&T Global Information Solutions) and chevron that have learned to use ADR effectively, and are in fact reaping ADR’s predicted benefits.
Let’s start with Commitment as a number one rule. Companies that give ADR top priority even in cases where they are sure they are right are realizing immense savings of time, money, and relationships. In contrast, companies that let old litigious habits worm their way into the process might as well go back to court.
A good example of such level of commitment is demonstrated by NCR in 1992 when it discovered that one of its suppliers had sent it computer boards that did not conform to specifications. NCR wanted to return the boards for a refund, but the vendor refused to cooperate on the grounds that NCR had not complained in a timely manner and that, in any event, the supplier could fix the defect. NCR did not want the goods repaired, because improved technology introduced in the interval had made the items virtually obsolete. NCR offered to compromise by returning the boards and claiming only a partial refund or a credit toward future orders of other products. The supplier declined to give a refund in any form, vowed to undertake a legal battle, and hired a large law firm.
Sticking to its policy, NCR declined to enter into litigation. Instead, it filed an arbitration demand. The vendor’s counsel tried to throw the process off track in a number of different ways. First he objected to arbitration, then he protested the hearing venue, then he introduced a motion for discovery. But the American Arbitration Association dealt with those roadblocks, succeeded in scheduling an arbitration session, and, several days before the hearing, the parties settled.
This case illustrates the routine though not negligible matters that arbitration handles particularly well. When each party’s position has some merit, disputes over goods almost always end the same way: the party holding the cash decides to pay up before the case goes to trial. Here again, the prospect of arbitration quickly brought the case to its virtually predestined end, with a result almost certainly better than litigation could have achieved. Working through in-house counsel, NCR laid out less than $5,000. In contrast, because it retained counsel and dragged its feet on arbitration, the vendor spent more than $20,000, only to wind up with a result close to what NCR had proposed in the first place.
Rule number two is to make sure arbitration looks like, feels like and works like arbitration. Many companies have developed arbitration not so much to hold down as to disguise both costs and unnecessary procedures. As a result, arbitration is more expensive than it should be, companies such as NCR have set up the guidelines to deal with this problem and some of them include the following.
Streamline the proceedings. The parties agree to stipulate undisputed facts and matters of law and to encourage the arbitrator to rule on disputed matters of law in summary form before hearing evidence.
Limit the necessity for briefs. In some cases, no briefs are needed at all. Arbitrators should be asked to identify the issues on which they want the parties to write briefs.
Participate in prehearing exchanges. Prehearing exchanges often lead to a reduction in the witness lists and to having less important witnesses submit their testimony by affidavit or even by telephone
Agree to limit damages. And lastly Instead of retaining opposing damage experts whose testimony conflicts, Both parties should agree on a single, neutral expert.
Rule number three is to create a systematic process that mandates ADR as the first step in every legal action.
At NCR for example, the Dispute Avoidance Resolution Process called DARP, begins when the Ombudsman reviews the dispute, regardless of whether NCR has initiated the complaint or another party has named NCR as respondent.
In conclusion, I will therefore say that although some cases may ultimately lead to litigation; Time, Commitment, Persistence and Continued Re-evaluation Of The Systems put in place to support ADR will definitely guarantee you savings on cost, time and effort as well as improve, maintain or strengthen the relationship between you and the client.
Love, Law, Human Rights, Technology and Food.
Loves Reading, A Good Conversation and Lots of Comedy.