A New Harmony of Civility and Professionalism
The Bencher—September/October 2016
By Deborah Wood Blevins, Esquire
Two recent “movements” have reshaped the landscape in the practice of law. The American Inns of Court movement has brought a renewed focus to ethics, civility, and professionalism in the field of law. The Alternative Dispute Resolution (ADR) movement has altered the role of conciliation and self-determination in the process of dispute resolution. There are parallels in these movements that complement one another.
One of my colleagues tells a story that sounds kind of funny today. He graduated from law school and started to work with a large law firm in its civil litigation section. He was introduced to another attorney who had just left a top-drawer firm to found a mediation firm. The judge-to-be young lawyer had dreamed of trying cases, arguing motions, and conducting direct and cross-examination. He wondered, “Can anybody make money on lawyering without litigation? What kind of attorney would leave the world of litigation to start a legal firm without it?” What kind of lawyer? A really smart one! The lawyer who left litigation grew a pre-eminent business in his region and cornered the market by hiring many of the state’s talented retired judges to work for him as mediators. He was the visionary.
Alternative Dispute Resolution (ADR) programs have grown exponentially in the past 30 years. There are a myriad of ADR mechanisms (mediation, conciliation, arbitration, early neutral evaluation, etc.). For the purposes of this article, mediation is the mechanism highlighted to explore how ADR can be effective for promoting professionalism and civility for attorneys.
Self-Determination Promotes Civility: In court, someone else imposes outcomes on individuals. The rules of evidence dictate who says what when. There are winners, losers, and a lot of cost. The loss of control experienced by a party involved in litigation manifests itself in big emotions: fear, anxiety, helplessness, distrust, and unhappiness. Uncontrolled, these emotions engender anger and aggression.
ADR empowers all participants to make their own decisions. The issues that matter to the parties are the issues that are discussed. People have a chance to say what they want to say—to “vent” negative emotions.
ADR presents unique opportunities for parties, adjudicators, and most importantly attorneys, to exercise civility. Consider the case of Bill Smith. He consented to settlement mediation. The opposing attorney offered the following introduction:
Hello, Mr. Smith. My name is David French. I am the attorney for your employer, ABC Company and its insurance carrier. Thank you for being here today. Today is a special day in terms of your claim. This may be the only day when I have the opportunity to speak with you freely and say whatever I want to say to you. Likewise, you may say whatever you wish to me. That is because, at any other time in your claim, how we speak and when we speak will be directed and managed by the court and rules of evidence and procedure. So I can say to you, I am sorry that you were injured and for the difficulty that has caused you and your family. I care about you and want you to have a fair and reasonable result. I look forward to our discussion and I am hopeful that today we will all be able to work together to craft a solution that will represent a fair and just resolution of this claim.
How empowering! And how civil. Because ADR is not bounded by rules of evidence and procedure, opposing parties may create their own framework for resolving virtually any type of dispute. For attorneys, the ability to leave the rules behind can allow them to say all those things they could not or would not say in the course of a trial. They can display empathy, express understanding, and even say “I’m sorry.”
Confidentiality Encourages Civility: ADR systems usually incorporate components requiring strict confidentiality. Mediators are separated from the fact-finders of the litigation process. What is said in mediation cannot be relied upon or recited in court. This gives all parties the opportunity to speak and act with a degree of candor not otherwise obtainable. A defendant or his lawyer is not bound to silence by the fear that his or her words will become an admission with a potentially binding effect. Confidentiality builds trust for all. Trust creates an environment supportive of civility.
Interest-Based Negotiation Encourages Civility: The American Bar Association’s (ABA) Model Rules of Professional Conduct, adopted by many states, mandate that attorneys discuss the client’s objectives and the variety of means available to pursue those objectives. See Rule 1.2; Comment, Rule 1.3; Rule 1.4. While mediation or ADR will not satisfy all objectives, as a general rule mediation focuses on interest-based negotiation, which highlights the interests of the parties, rather than their positions.
For example, the position of a wife in a divorce might be: “I want more spousal support.” Her interest in taking that position might be: “My car is old and is taking more and more money for repairs.” By focusing on the interest in negotiating, the parties can focus on problem solving, allowing both sides to find a win–win (husband agrees to perform minor car repairs, decreasing cost to both sides).
Interest-based negotiation focuses on the problem, and the people who are experiencing it. It allows all participants to focus on solving the problem, rather than “winning” the case.
ADR Promotes Professionalism through Education: The ADR environment is conducive to education, both teaching and learning. Professionalism demands knowledge of competing dispute resolution systems. It also requires competency in using them. Rule 2.1 of the ABA Model Rules of Professional Conduct mandates that attorneys educate themselves, and in turn, educate their clients, about the range of alternatives available to them. In the role of teacher, ADR gives attorneys the chance to educate the client, a mediator, the opposing attorney, and the opposing party. In 2005, the American Bar Association, the American Arbitration Association, and the Association for Conflict Resolution approved Model Standards of Conduct for Mediators. These standards reflected the unique challenges imposed upon attorneys acting as mediators. The standards demonstrate there are professional requirements for mediators that are different from those necessary in the traditional roles of attorney and advocate. These include impartiality, maintaining confidentiality in a fluid process with multiple parties, managing distinct possible conflicts of interest, and ensuring integrity and quality in the mediation process.
Many forms of civil litigation involve complex questions of damages. ADR allows lawyers to educate others on perceived valuation. A lawyer must educate himself through the process of gathering, reviewing, and analyzing data. This allows attorneys to educate others about valuation or substantive law. Mastering the unique skills set for a presentation in the ADR realm makes good lawyers better. The argument that may be most persuasive to a judge or jury may not be the most persuasive to the opposing attorney or party.
ADR Serves Professionalism by Encouraging Creativity: In a legal world with few rules, predictability might be a challenge. No green lights or red lights—everyone is required to proceed with caution. It would not serve many of the needs of an orderly society. But there could be a benefit. Presented with a conflict or dispute, parties could operate without boundaries to resolve it.
ADR permits everyone involved to exercise creativity in problem solving. In today’s society, positions are often taken because “It’s just business; it’s not personal.” In mediation and other forms of ADR, the process is intensely personal. Everyone focuses on the multi-dimensions of a problem: legal, financial, medical, emotional, etc. ADR affords an avenue for attorneys to think and act creatively in developing satisfactory outcomes.
ADR Promotes Professionalism Among Judges: In my home state of Virginia, some judges are precluded by Judicial Canons of professional responsibility from serving as mediators. Others, such as administrative law judges, are not. For judges not barred from ADR, the ability to serve in a different role offers opportunities to sharpen skills and develop new tools.
ADR requires mastering the art of active listening, in order to assist the parties in moving from position to true interest. The attorney or judge acting as a mediator has greater opportunities to ask questions of all parties in order to learn the factors that affect decision making which are not apparent in a courtroom proceeding. The mediator can gain insight into issues such as market pressures, claim evaluation, incentives and disincentives to settlement. Virtually every judge who serves as a mediator tells me the experience has improved his or her skills and perspective. Those who begin mediating after they retire often express the wish, “If I knew then what I know now.” ADR makes good judges better.
Conclusion: Proponents of Alternative Dispute Resolution stress that these non-traditional dispute resolution mechanisms engage and empower parties. They foster a flexible, creative approach for problem solving, which moves parties in conflict from the realm of position to interest. Through ADR, attorneys can craft appropriate solutions while enjoying unique opportunities to develop and exhibit civility and professionalism. ADR is a voice in the chorus contributing to a legal system where attorneys and judges may act as they should and not just as they must.
Deborah Wood Blevins, Esq., is the Managing Deputy Commissioner of the Virginia Workers Compensation Commission Alternative Dispute Resolution Department. She is vice-chair of the Joint ADR Committee of the Virginia State Bar/Virginia Bar Association and co-chair of the Dispute Resolution Committee of the International Association of Industrial Accident Boards & Commissions. She is a member of the Virginia Workers Compensation AIC in Richmond, Virginia.
© 2016 DEBORAH WOOD BLEVINS, ESQ. This article was originally published in the September/October 2016 issue of The Bencher,
a bi-monthly publication of the American Inns of Court. This article,
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