A Referee and a Friend
Consider alternative dispute resolution as a
possible career path.
By Susan Howery
May/June 2000 IssueAt the start of the spring semester, I kicked off my LAW100 course,
Introduction to Paralegal Studies, with a discussion on whether money can buy justice.
This led to many other discussions, including a dialogue about whether the adversarial
system is appropriate for domestic cases. I suggested that the adversarial system leaves a
lot to be desired if the people in a legal dispute need to resume a relationship after the
action is concluded, as in a divorce with children. Because the children tend to be the
ultimate losers when their parents duke it out in court, more and more court systems have
opted for a mandatory mediation to try to resolve a domestic relations dispute.
Additionally, many courts require lawyers to advise their clients about alternative
dispute resolution (ADR) options in civil litigation. Without getting into a philosophical
discussion about the adversarial system, let’s just say that ADR makes good sense in
some cases, and may be a career option for paralegals as well.
When to Seek ADR
In an article titled “What is Gained and What is Lost,” by Thomas Crowley,
Michael Broderick and Peter Adler (“Hawaii Bar Journal,” published by the
Honolulu-based Hawaii State Bar Association, July 1993), the authors set forth some of the
reasons why a client might choose ADR, such as mediation or arbitration, to solve a
dispute. The authors write, “In mediation, the parties determine the outcomes and are
the architects of their own solutions.” The mediator is a neutral third party who can
bring fairness and the benefit of experience to the negotiating table. Mediation has a
high degree of success — the American Arbitration Association reports that more than
85 percent of its voluntary mediations settle. Mediation is cheaper and generally faster
than litigation.
However, mediation has some drawbacks. In litigation, the
court can compel the release of documents and information that may not be obtained through
mediation. Parties in mediation may feel they don’t have all of the necessary facts
to settle. The authors suggested that mediation might give the opponent “two bites of
the apple.” Because mediation is non-binding and voluntary, either side can decide
not to continue with the process.
Arbitration, on the other hand, tends to feel more like
litigation as it follows a similar process. Arbitration is mandated for many disputes by
statute. Arbitration is generally faster than litigation, and depending on the case, can
be cheaper. Arbitration is binding, but the parties get to choose the arbitrator. Also,
courts don’t generally overturn an arbitration award.
However, arbitration has limited discovery and the rules
of discovery are relaxed, so one side or the other may still not be able to get all of the
information it needs. Generally, there’s no appeal, and this is a known risk of
arbitration. Arbitration can tend to “split the baby,” rather than grant an
award completely to one side or the other. Arbitration can be costly if you add up the
arbitrator’s fee and the fee for the administration of the arbitration, particularly
if the arbitration is lengthy.
However, the authors warned that ADR is not appropriate
for all cases. What if you want to set a legal precedent or protect a constitutional
right? You can’t achieve these goals if you opt for ADR. As the authors state,
“Neither mediation or arbitration is a panacea. They are dispute resolution
mechanisms which are complements to the existing court system, not wholesale substitutes
for it.”
I have been reflecting back on a moving keynote speech
delivered by Adler that prompted my thinking about the role of the paralegal in ADR.
Paralegals tend to facilitate communication in their everyday practices and can be good
listeners and problem solvers. It makes sense to me that paralegals could play a vital
role in the ADR process.
Who Can Mediate?
When I worked in Michigan, I had the impression that only lawyers could mediate. The
district court system required mandatory mediation in civil matters, and it used a list of
attorney mediators. I decided to try to reach a couple of the authors of the
above-mentioned article to question them on this subject. I spoke with Adler at his office
in Hawaii. Adler is the past board president of the Society of Professionals in Dispute
Resolution (SPIDR), and is currently the executive director of the Hawaii Justice
Foundation. Adler has quite an impressive background, including work as an author,
mediator, arbitrator, facilitator and court-appointed special master on more than 250
large cases. He explained to me that there are no national certification or licenses for
mediators. “If you look around the landscape of the country, no one has set
standards,” Adler said. “Public agencies and private companies are certifying
for their own purposes.”
SPIDR has issued a number of reports on competency
qualifications. As a result of their studies, SPIDR concluded that no one should be
certifying on the credentials alone, and that mediation can and should be done by lots of
individuals. “No one profession ought to be monopolizing this,” Adler said.
“Just because you have a degree in engineering, that doesn’t qualify you to
mediate a complex construction case.”
A good mediator, in Adler’s view, possesses the
“softer qualities” such as problem solving skills, diplomacy, a nose for
negotiation and interpersonal communication skills.
Adler told me that he has trained a lot of people with
paralegal backgrounds, and that they have turned out to be good mediators because they
have good experience with people and have some special knowledge of the law. He stressed
again, however, that the defining characteristic for choosing a mediator shouldn’t
preclude a person of a particular profession.
I then contacted Crowley, president of ADR Hawaii and an
attorney in private practice, and asked him what characteristics he thought a good
mediator should possess. The first word he said was “patience.”
“You need to be able to listen to someone when you
think they should be strangled. You need to respond, rather than react,” Crowley
explained. He quoted Abraham Lincoln: “You should listen like a sincere friend.
That’s the drop of honey that catches a person’s heart.” This is the key,
Crowley said. “You don’t need to be a paralegal or a lawyer to do that.”
He spoke of the merits of ADR, and about the importance
of “getting to the table.” He used to argue against mandatory mediation, but has
since changed his mind. “Getting to the table is so hard. Once they [the parties] get
there, the power of mediation can make it better.” A good mediator has to learn how
not to take “no” for an answer, particularly when the message is: “I said,
‘drop dead.’ Are you deaf?”
A Place for Paralegals in ADR
Have you always wanted to try your hand at mediation? The good news is there’s a
place for paralegals in ADR. In fact, there’s a place for all kinds of individuals in
ADR. I believe that paralegals are uniquely well suited for this business — they
generally possess the “softer qualities” Adler spoke of, along with a special
knowledge of law. I agree with Adler’s premise that a profession shouldn’t
necessarily be the defining characteristic for choosing a mediator. If you’re
interested in becoming a mediator for a public agency, court system or private company,
you should call around to find out about the different types of training offered in your
state. I suggest that you contact the agencies listed below, and read more. Crowley has
written another wonderful article titled, “Running the Resolution Rapids: Adventures
in Mediation” for the Hawaii Bar Journal. It’s a light-hearted, but practical
guide through the process. Reading this article might be a great starting point. |
