The value of dispute resolution process assessments

Issue November/December 2016 By Michael A. Zeytoonian

With the coming of the information age and the increasing reliance on information technology, consumers have become increasingly savvy in how they research and shop for good and services. Legal services are no longer an exception to that trend. Today's potential clients searching for lawyers as well as legal information on the internet are not only beneficiaries of easier access to legal information, forms and services, but are also more educated on the law.

Having access to information is one thing; knowing where to go with it or what to do with it is another. This is where today's lawyer's value is found. People can probably figure out the right practice area (i.e. real estate, employment, commercial, divorce, etc.) in which to look for a lawyer. They can find the forms, the documents and the basics of the law online. But the information has not been refined yet. Nor has it been applied to their situation. What clients can't find in the early going, either on line or talking with friends and family is what they need the most: The trusted and wise legal counsel of an experienced lawyer who is responsive to their needs.

This is especially true when it comes to finding and choosing the right dispute resolution process for their situation. Influenced by television, movies, America's overly-litigious culture and one or more well-intentioned relatives or friends telling them they need to find a pit bull litigator, clients usually fail to make good choices when it comes to choosing a dispute resolution (DR) process for their dispute. One reason for this is that their choices at this point are being driven by their emotions and egos. Another reason is that they have very little knowledge or education on what options are available to them, with few people able or willing to discuss these choices.

What clients need at this point is someone to assess their situation, educate them on their options and guide them to the right process choice. Often, the clients' search for a lawyer for their dispute will usually will lead them to a litigation firm. Litigators, following their natural and understandable zeal to sign up the client for litigation are most likely to do just that. One can't blame litigators for that desire any more than you would blame a surgeon for wanting to do surgery, rather than to see if chiropractic treatment will resolve the medical issue. This is how navigating the legal system works (or doesn't). Clients are thinking about and seeking out their hired gun, their warrior, their scorched earth pit bull. When they are looking for their Atticus Finch, their Lt. Calley or even their Cousin Vinnie Gambini, it's tough at this point to talk them off the cliff.

Yet, that is exactly what they need. Real life disputes are not like TV or movies. First, less than three percent of the cases that get filed in court ever get to trial. It happens rarely, and when it does, it is not the stuff of Hollywood. Most clients do not understand how the litigation process works, and believe it to be their only effective option. It's not uncommon for the parties to be appreciative of alternate options when they learn more. Once the parties know there is an overwhelming likelihood of settlement, they more easily recognize the correlation between their circumstance and an appropriate DR process.

This choice of which DR process to use is critical to the clients' reaching a good resolution of their disputes. It also calls on lawyers to do some "situational law" thinking. This is an important and valuable role for lawyers to play - that of legal counsel, guiding our clients to the right course of action for their circumstances. Before the client signs up with any litigator or agrees to Mediation, Arbitration, Collaborative Law, Conciliation or anything else, he should work with a lawyer to come up with the DR approach that responds to the situation that the dispute presents. Dispute Resolution is no longer "one size fits all." Lawyers and neutrals can provide outstanding service to clients and parties by guiding them to the right process and in some instances, designing the DR process to fit the circumstances.

An efficient approach would be to conduct a three part DR process assessment with the potential client. This is not a "free consultation." Nor is it a legal analysis of the facts and applicable law in this case, or an evaluation of the strengths and weaknesses of the case. It's a reality check; a thorough examination of the client and their situation, including their emotional and financial bandwidth, pragmatic needs, level of risk aversion, time frame needed for reaching full resolution, etc. The assessment, followed by an educational primer on DR options, and concluding with a reasoned, objective recommendation as to the process(es) most likely to resolve their predicament while allowing them to maintain as much input and control as possible, is what the savvy, cost-conscious client of today seeks.

Here are some questions a lawyer conducting a DR process assessment would ask:

  • What are your goals and interests? What would a good outcome for you look like?
  • Have you considered other ways of accomplishing your goals besides litigating?
  • What is your time frame? How soon do you need or want to put this issue behind you?
  • How important is it to maintain a healthy (business, civic, organizational or family) relationship with the other party(ies)?
  • How important is confidentiality to the parties in this case?
  • What is your level of risk aversion? Put it this way: A jury could decide this case the other way and you'd get nothing after spending several years and several tens of thousands of dollars on this litigation. How does that sit with you?
  • Are there other parties and other considerations that we can include in our assessment of this dispute that will help us expand the pie of possible options for settlement? Does this dispute call for creative solutions beyond what the courts can provide?
  • Are you willing to collaborate towards resolution with the other side, with professional assistance and counsel from non-adversarial, negotiation-style lawyers and/or a mediator?
  • Do you want to have a say in the process and the outcome? Are you comfortable leaving the decision-making about your case to a jury of people you don't know?
  • Would you feel better leaving the decision to an arbitrator who is very knowledgeable in the subject matter and applicable law in this case?

This assessment lays a solid foundation for moving the client forward in a way that will achieve the best outcome. It is followed by educating the potential client on what DR process options are best suited to the dispute, how each one works, when they are typically used, and the pros and cons of each one.

This assessment, education and recommendation is vital to the client in order for them to make a good, informed choice as to the most appropriate DR process. It is a service that gives the client real value, and establishes a level of comfort in the process choice ultimately selected. It is something that the client should be charged for (I recommend pricing it on a flat rate basis) as you are providing an education and a blueprint that is responsive to the situation. It is also a niche legal service which a lawyer can add to their toolbox of valuable services.

Carrying out this assessment and recommendation step sometimes means that we as lawyers or neutrals refer clients to other practitioners as the situation dictates; in the long run, that too results in benefits. It helps all practitioners by funneling the disputes to the right processes and lawyers, which is beneficial to the entire DR community as well as the overall communities we serve. Finally, as more lawyers provide this beneficial effort, we restore the confidence of our clients and of society in our profession. We affirm our roles as problem solvers and in some cases, as peacemakers. As Abraham Lincoln noted in his 1850 "Notes for a Law Lecture," "As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough."

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