While it’s no Oxford English Dictionary, my Thorndike-Barnhart Student Dictionary is quite a reliable word guide. This dictionary, presented to me 20 years ago for winning a school spelling bee, includes particularly thoughtful definitions. For example, “education” is defined as the “development in knowledge, skill, ability or character by teaching, training, study, or experience.” Education is ongoing, affects our aptitudes and our selves, and can come through formal channels or the more experiential “school of hard knocks.”
As attorneys, we are required to continue our education and — despite our convincing impressions otherwise — even that requirement doesn’t make it possible for us to always know everything. In the “back to school” spirit of August, I offer this list of 10 things you might not know about dispute resolution, but that I recommend you consider. Think of this as “Dispute Resolution 102,” continuing “education” to follow October 2008’s ADR-themed issue of the Bar Bulletin.
1. Training and experience are important. Forty hours of training is a good start and even more is better. Although the Washington Mediation Association will “certify” mediators, there’s no bar examination and licensing equivalent for individuals who wish to offer their dispute resolution services. Many dispute resolution professionals have excellent professional experience that they can continue to build on.
2. Mediation/arbitration doesn’t have to be your whole career. Continuing to wear both your lawyer “hat” and your dispute resolution “hat” allows you to cross-train your skills.
Working as a neutral helps you better assess how — as a lawyer — you can effectively convey information to the neutral in your next case. Similarly, a current understanding of the legal pressures facing the parties allows you to add value by anticipating the particular challenges they’ll face, such as issues in implementing their agreement.
3. King County is serious about mediation. Particularly in light of the county’s recent budget cuts, judges are strictly enforcing the ADR requirement. If you haven’t attempted ADR as the court defines it, your case may not be scheduled for trial.
4. Dispute resolution is not just for the end of a case. Early mediation gives attorneys more control in a case; educates parties sooner as to the law, their options and the other side’s perspective; facilitates better planning on complicated financial issues (such as tax planning); and increases client satisfaction.
5. Dispute resolution is not just for resolving substantive issues. Mediation can be a tool to aid in joint fact finding. For example, in technical cases where expert advice will come into play, mediation can be a process for reaching agreement about how this information will be produced.
6. Using mediation can lead to measurable savings in time and money. WSBA ADR Section Chair Debra Synovec and KCBA ADR Section Chair Alan Alhadeff report similar findings from divorce mediation. Using early mediation, the average case was fully resolved within four to 12 weeks, with more than 75% of the cases in mediation for less than 20 hours. Overall, the average total legal costs for mediation were well below $10,000.
7. Collaborative law is a growing approach for divorce dispute resolution. Jeff Bean, chair-elect of the WSBA ADR Section, reports that in recently surveyed cases, most involving more than $500,000 in assets (40% more than $1 million in assets), half were fully resolved in six months or less. More than half settled in nine hours or less in face-to-face negotiation time; 85% settled in less than 20 hours.
8. Synovec, Alhadeff and other ADR practitioners report the two processes of collaborative law and mediation are often effective in working together in the same case. As collaborative law grows in practice areas such as probate, attorneys in other practice areas will likely report similar findings.
9. Law students pick up very quickly on ADR principles and embrace them. UW Law Prof. William Covington has observed that most students go from a cursory understanding of ADR at the start of law school to a desire to learn more about it once their education is under way. Gonzaga Law Prof. Larry Weiser also has seen students’ views evolve from an initially limited view of lawyering as a “very competitive ‘win-lose’ process,” once those students are exposed to ADR.
10. With increased awareness of negotiation options, student views of their role as a lawyer “radically change.” Students “tend to favor speedy, fair and cost effective ways of problem resolution,” Covington says. Because they are new to the profession, students “tend to be more open minded when it comes to establishing and/or using new paradigms,” he says. “Most law students want a system that is fair and just; ADR is seen as part of such a system.” These students will be shaping law practice in the coming years.
Adrienne Keith served as chair of the KCBA ADR Section from 2007–2009. She will be serving as vice chair this coming year. She is a family law attorney and mediator, and not-too-shabby at spelling.
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