ADR and Independent Dispute Evaluation
alternative dispute resolution, dispute evaluation
The combination of lawyers’ economic self-interest, caseload demands, knowledge deficiencies and employer and opponent behavior in many instances creates a situation where clients would be wise to obtain the medical equivalent of second opinions in determining how to resolve legal disputes or evaluate the consequences of important transactions. As I attempt to show in the analysis clients often receive inferior service as well as being subjected to processes that serve the financial interests of their lawyers rather than their own.
The analysis contained here focuses solely on dispute resolution as offering a bundle of distinct and overlapping methods available to attempt to resolve a client’s dispute in the most effective manner possible. It is a pragmatic analysis that avoids the morally preferential connotations of ADR as being a preferable approach compared to authoritative litigation. For this analysis the only principle is that of providing the client with the best outcome that can be reasonably achieved through whatever mode of dispute resolution that can be identified as being the most effective approach. This might be something as simple as not joining in a dispute because the financial, time, energy and emotional costs are such that even a “successful” outcome is a loss when judged according to a critical parameter.
The argument made here is that there is a need for a consultative tier of independent case and transaction evaluators who are capable of providing clients with honest evaluations of the disputes and transactions in ways that ensure that a client’s primary lawyers come to realize they are answerable for their conduct. Of course, there should not be a need for such second opinions in relation to the quality of service provided people seeking legal help because we already owe it to clients to provide pragmatic and detailed evaluations about what approaches are possible and preferable. This includes the outcome probabilities for each path of action, the strengths and weaknesses of each side of the dispute, the timing and conditions of how the interactions are likely to play out, and the costs of the dispute depending on how the parties proceed. Objective evaluative counseling is one of the most difficult aspects of a lawyer’s provision of quality professional services to a client and for various reasons is an area in which lawyers often fail their clients.
David R. Barnhizer, ADR and Independent Dispute Evaluation, Cleveland-Marshall Legal Studies Paper No. 11-208 (June 14, 2011)