Alternative dispute resolution: The power of compassion and closure

Issue August 2010 By Sarah E. Worley, Esq.

There are two states of the human condition that cause the most angst: first, having something one does not want, and second, wanting something one can't have. As bad as these two conditions are standing alone, when experienced together, they can pose a seemingly insurmountable challenge.

The arena of litigation is filled with cases that represent the merger of these undesirable conditions. While not every matter involves what the public commonly refers to as "personal injury," it is safe to say that every injury - whether physical, economic or intellectual - is personal. No one engages in litigation because every aspect of their life is in harmony; if you are sitting on the other side of the table from a lawyer, something has gone wrong.

Regardless of the nature of the underlying problem, most legal disputes and most litigants have something in common. With the exception of a very small population of outliers who thrive on controversy, most people do not want disruption in their lives. They do not want to be injured, or unemployed, or on the losing side of a business venture, or in conflict with their neighbor. They find themselves in the unfamiliar, and uncomfortable, world of litigation because they have something (whether it is a medical condition or economic circumstance or domestic dispute) that they do not want.

At the same time, the average litigant wants something they cannot have. They want a quick resolution, or a guarantee that their life will go on as before, or a sum of money that they have determined will justify the angst they have endured. In the world of civil litigation, it is rarely the case that any resolution is quick or satisfying. Our process moves slowly and rarely results in what anyone would characterize as justice. Rather, litigants who are unhappy to begin with, regardless of whether their role is that of plaintiff or defendant, follow their lawyer-guides through an im-perfect system that, more often than not, ends with some level of disappointment for all.

Alternative dispute resolution (or ADR), while not perfect, lends dignity to an otherwise undignified experience. Some litigants liken the experience of answering interrogatories, producing documents, and submitting to forensic or physical examinations to a strip search. An arbitrator or mediator who, by definition, has not been involved in and has no stake in the outcome of the matter at hand, is removed from tensions that may have developed between litigants and their counsel in the course of discovery. While depositions, independent medical examinations and other pre-trial events take place on partisan turf, the office of the ADR neutral is, and should be, a symbolic sanctuary. Parties can air their gripes in a fair space and, in a world in which they may feel that they have lost a certain amount of control, they can regain their footing. ADR is unique in that, unlike other legal events that are governed by the Rules of Evidence or the Rules of Civil Procedure, ADR methods can be crafted to meet very specific design needs of the participants.

For instance, in some cases, one party does not want to be in the presence of another, or one party does not want to be present for the testimony of another, or a parent prefers a child to hear some, but not all, of a presentation. In mediation, the structure of the event is limited only by the imaginations of the parties. Conversely, the format of arbitration is more formal but, in most instances, the parties can consent to a certain degree of flexibility. In either case, the key is open communication between the party representatives and the neutral. If parties want or need a particular accommodation, they should communicate that to their representative, who in turn can convey the same to the neutral. Too often, a party who is already dismayed by one aspect or another of their predicament will assume that their request as to ADR format cannot be accommodated and they will choose the self-limiting path of never raising the issue. One of ADR's greatest gifts is its spectrum of options; parties and their counsel should never hesitate to inquire about the same.

Similarly, non-monetary options abound ­- often exclusively - in the world of ADR solutions. Thanks to an unhealthy combination of cynicism and media portrayal, parties sometimes assume that their own attorneys are interested mostly in what they themselves will get out of a case. To the contrary and, again, setting aside the outliers, most counsel of repute want a happy client first. Regardless of side in a legal dispute, an apology goes a long way towards resolution, as does common courtesy and compassion. Depending on the particular circumstances, to some who have suffered a worksite tragedy or injury at the hands of a product or process, a negotiated agreement that incorporates a product review or policy change goes a long way to resolving a dispute; at the same time, such a step generally benefits the alleged tort feasor as well. Catharsis is good. Returning again to a reflection on human nature, the notion that one has saved others from a bad experience can have value, and that value should not be underestimated in the course of a negotiated settlement.

Finally, litigants come to ADR looking for a conclusion. Very few attorneys have only one case and very few litigants have more that one legal matter in which they are engaged at any particular time. While attorneys engage in ADR in the midst of other scheduled matters, their clients fret for what must seem like a long time over the promise of this one event. Setting aside the instances of fishing expeditions or unmanageable expectations, the majority of parties look to ADR as the light at the end of the tunnel, and it can be, if they and their counsel approach it with clear heads, reasonable expectations, and a view that is sincerely open to alternatives. A solution may not be perfect, but resolution in and of itself can be perfection.

Sarah E. Worley is president of Sarah E. Worley Conflict Resolution PC, a full-service private provider of alternative dispute resolution services. The firm offers mediation, arbitration, conciliation, case evaluation, mini-trial, mock trial and summary process trial, and has the capacity to run mock trials and focus groups on-site. Worley can be reached at (617) 419-1900.