Litigation and ADR – a marriage of convenience?

by Mike Wells 

Mike blog 1

Hi everyone.

This is my first blog with newylawyerlanguage, and I am looking forward to the opportunity to interact with you and share my thoughts and experiences as a lawyer who has chosen to not go to court any longer.

So, on the topic of ‘not going to court’, it makes sense to me to begin with a blog that acknowledges just how difficult it is to be a lawyer who juggles the demands of both a litigation and ADR practice in the area of family law (and elsewhere). To my mind it is very difficult to do either at a high level, but both at the same time??

Now the bad news: This blog does not contain “the answer” about how to succeed simultaneously at litigation whilst embracing the philosophy and practice of ADR.

Rather, a starting point is a rhetorical question: How does a lawyer, and particularly a relatively new one, manage to gain the respect of, and get noticed by, the managing partners of their firm? Especially if they are not completely (more or less) focussed on achieving and, let’s face it, exceeding their budget, and showing they are learning the ropes about being a more-than-competent litigation lawyer. Sure, you can do some pro-bono work, and arrive early and finish late, but one thing (or maybe more?) will help you stand out from the crowd – bringing in and running files with many zero’s, and being able to litigate effectively.

By comparison, to kick goals (as it were) within ADR requires you to successfully engage your client (and “opponent”!) in a framework and mindset of mediation / collaboration (etc) and, importantly, to find an agreed ADR process that can resolve the dispute entirely (i.e. before Trial / Final Hearing).

Hmmm, what a contrast.

We know that for a variety of reasons, ADR approaches to conflict resolution seem to be ever increasing in ’popularity’ amongst clients. To me, this is not surprising given that, at least anecdotally, the public are aware of the costs of litigation (financial and otherwise). Everyone seems to be aware of a cost-benefit analysis nowadays and, especially in family law, I say that litigation fails this test in most family situations.

Whereas, ADR can often assist to not terminally damage an ongoing working relationship (i.e. where children are involved) by emphasising meaningful dialogue between the parties and identifying areas of commonality, to which later agreements can be attached. More than that, clients are aware that ADR provides an opportunity to have control over their own destiny: the timing of the ADR; the scope of things to be discussed; the cost; and, a properly delivered ADR process can capture more than just the legalities of the situation – I am sure we have all seen and heard clients raising these types of issues that in litigation must be brushed aside. ADR has the ability to be more open to embracing legal and other complicating factors…

So with this in mind, one can begin to appreciate that with such different methodology and aims, working as a lawyer in these contrasting areas can be very difficult.

Perhaps my main thought when writing this blog was to acknowledge and give some air time to the difficulties in working in such disparate areas as a lawyer – Collaboration is particularly difficult, which is on the spectrum of ADR, but more advanced than mediation. In Collaboration the differences in lawyer “style” are more exaggerated.

To illustrate my point about the challenge to young (and old!) lawyers when attempting to genuinely embrace a different way to working than litigation, here is a list of the more notable techniques and methodology that come to mind when I am working as a collaborative lawyer (in a family law situation):

  1. Engaging in open, honest and transparent communication with the other lawyer – sharing your client’s instructions to the extent that it is helpful for each party (and their lawyer) to know the aims, worries, aspirations, plans and so forth. Not to mention that non-legal issues may well need to be heard, acknowledged, demonstrably understood and taken into account.
  2. Working closely with neutral psychologists (known as a ‘family professional’ – usually the professional who is most able to tap into communication problems and so on), as well as a neutral child expert and neutral financial professional. These personnel are equal collaborative team members who meet regularly through a collaborative process to debrief, share their thoughts, concerns, ideas and information so as to collectively help BOTH clients reach their stated aims and address each person’s needs that have been clearly identified at the outset and that are known to all.
  3. Coaching your client to see the other person’s perspective, as much as it might be in contrast to their own values or beliefs, because without doing so outcomes that can endure are probably never going to be reached. Ever heard a client say “I just want my day on court”? Well, in Collaboration the importance of clients “being heard” (and acknowledged by the other person and taken into account when decisions are being arrived at) is a primary consideration.
  4. Don’t give your client advice about what they’re entitled to. To do so will entrench in their mind a position (akin to litigation) that they will be likely to forever remember and measure success/failure on it, at the expense of the more holistic and broader aims of the process. One aim is, for example, to have an outcome that can endure.  Another aim though is for the parties to have acquired and refined skills, abilities and insights (with the assistance of the lawyers and other neutral professionals), including about the conflict with the other person, so that future conflict can be more easily avoided or overcome. This pretty much says it all. In Collaboration lawyers don’t ignore the law, but they intentionally make sure that it does not get “in the way” of the bigger picture.
  5. Agree at the outset that no party will make unilateral decisions or threaten to take the other person to court. In fact all parties to the Collaboration sign a contract to this effect.

So, I suppose the learning from this blog is don’t be too hard on yourself as a new or relatively new lawyer if you are having difficulty embracing, let alone actually being, a lawyer working in a litigation practice that is striving (even only in their own mind) towards ADR. But the rewards are (I believe) self-evident – ADR is the future as I see it because it focuses a lawyer’s mind to not only think of today, but also tomorrow…

In the future, I envisage my blogs will cover topics such as: working as a lawyer in emotionally charged environments; being a sole practitioner; building rapport with clients; working as a lawyer in roundtable dispute management (RDM); entering legal practice when you are in your 30’s; insights into interdisciplinary collaborative team practice; and others…

Cheerio for now, Mike