You can select the appropriate process with mathematical precision
Practicing law is challenging work, and with the added pressures of court delays due to the pandemic, figuring out how to get a case resolved has become even more difficult. Basic questions range from, “What are the alternatives to trial?” or “What is the best ADR process for a particular case?” to “Will the client agree?”
When looking at the wide range of ADR processes, there are over two dozen now available; however, questions arise when considering any of them. Taking a look at the ten most popular ones could help with making a decision. For instance, there is always the settlement conference, but is this the right judge for this case and client? Arbitration is another way to have someone decide the matter, but is one arbitrator enough, or does this case require a panel of three? Can we afford that?
Of course, there is always direct negotiations with the other side, but then how well will that process work, especially if the clients are directly involved? Then there are two other court-connected ADR processes, which prompt negotiation. The ENE process, early neutral evaluation, involves having an expert who could help prompt people to negotiate, but then is the case even ready to be evaluated? Perhaps a special master might be good for the issues involved in the case. Of course, there is resistance from clients who want to control the outcome and not be told what to do.
Next, mediation might come to mind, as a means to allow the client to decide. Since mediators facilitate the negotiations, perhaps the chances for a settlement could improve. Maybe trying conciliation might work for this case with this unique client. But then there is the question – is there a person that both sides respect? Of course, one must remember that conciliators do not have to be neutral. An ombudsman might be the answer if a company or institution is involved, but what if the company does not have an ombuds program?
If there are a lot of issues and especially when there is a substantial amount of money involved, the SJT, summary jury trial, might work, but that takes a long time to schedule, and just like the private ADR version, mini-trial, there has to be a lot of discovery, which could create client resistance.
Ah... What to do? Well, there is one easy way to determine the appropriate process for a given case, the issues involved, and the needs of the client. In addition, this course of action will also allow you to demonstrate your mathematical genius for identifying the most appropriate ADR process.
To begin, assign a number to the case. You can link the number to what you think the odds are for finding a settlement, to how likely you think the client is to settle, to “I am so tired of worrying about this case, I will just pick a number!”
First, think of a particular case, and then assign it a number from 1 to 9.. That Result number is the key for determining which ADR process is appropriate for the case and client.
Number selected: ___ (Variable)
Then, multiply that number by 3. (Var.) ____ X 3 = ____
Next, add 3 to your last total. ____ + 3 = ____
Now, multiply that new total by 3. ____ X 3 = ____ (2-digit total)
Finally, add those 2 digits in the Total together. (digit 1) ____ + (digit 2) ____ = ______ (Result)
Best ADR process for the case
By matching your final number to the ADR process numbers listed below, you will have determined the most appropriate ADR process for the case you selected.
1. Arbitration 2. Early Neutral Evaluation 3. Negotiation 4. Settlement Conference 5. Ombuds 6. Conciliation 7. Summary Jury Trial 8. Special Master 9. Mediation 10. Mini-Trial
Now if you are still not sure, then try using a different number and again go through the process. See what comes up as the appropriate process. This method will work well with clients, especially those who do not listen to your advice. Just ask the client to select the number, then walk them through the process. It will be hard for them not to agree with your original suggestion.
ADR is always an appropriate consideration when evaluating a case. Practicing law is a challenging and stressful profession, especially during this pandemic; however, it has been proven that getting a smile or even a laugh will reduce stress, and increase beneficial chemicals to the brain, thus keeping a person healthier! Hope this article did the job!
P.S. If you still have not figured it out, any number you choose will direct you to mediation. The ADR process with the highest settlement and client satisfaction ratings is mediation.
As of March 31, 2023:
Nancy Neal Yeend retired as a dispute management strategist and mediator. She founded The End Strategy (TES) in Portland, Oregon and mediated pre-suit, trial and appellate cases. Nancy trained over 6500 mediators nationally for courts and private practice. She taught at San Francisco Law School, Franklin Pierce College of Law, Stetson University College of Law, and served as National Judicial College faculty for 28 years.
It is so interesting, thinking back over my 40-year career as a mediator and trainer about all the people I have met, and where I taught. The story behind how I got hired at Franklin Pierce is really funny. The founder, Robert Rines was sitting on a park bench in SF, waiting for his wife to end her shopping, and was sitting on the same bench waiting for my husband. Bob and I got talking, and long story short, he mentioned wanting to start a mediation course for intellectual property, and asked if I could teach such a course. Of course I said, "Yes". The funny thing is that I did not know a lot about IP, but there were several IP attorneys in my office building, so I took them to lunch and asked them to tell me about cases. That is how I got information, so I could construct the roleplays. I taught for 8 years at Franklin Pierce--this is before it became part of the University of New Hampshire.
The other funny thing about teaching at 3 law schools and NJC, is that I think I have been the only, dumb, female, non-attorney faculty any of them ever had! Oh well, I guess if I had lived in Lincoln's day, I could have been an attorney, since you only had to read the law. I have done lots of reading!
2023 by the author.
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