Disputants: The Missing Third Leg of the ADR Stool

The Bencher—September/October 2016 

By Terri Roth Reicher, Esquire

Professor Frank E. A. Sander of Harvard Law School first articulated the notion of the “multi-door courthouse” in 1976, when Chief Justice Warren E. Burger convened the Pound Conference to address the problems faced by judges in the administration of justice. This concept envisioned that the “courthouse of the future” would be a “dispute resolution center” offering an array of options for resolving legal matters. Professor Sander proposed that alternative forms of dispute resolution (ADR) should be used to reduce the reliance on conventional litigation. Mediation and arbitration, in addition to other processes, would be added to litigation as a means to resolve disputes. This construct would advance excellence in the application of law while providing a simpler, more cost-effective and perhaps a more civil method of handling disputes. Prior to this time, ADR processes were frequently used in labor/management and divorce/child custody disputes, but had not been incorporated in any concerted manner in the widespread resolution of commercial issues.

For years, U.S. courtrooms have been overcrowded. Judges are faced with huge backlogs. Lawyers and their clients are faced with excessive delays. Many judges welcome methods that would ease the congestion and provide an alternative that encourages a civil and efficient means to deal with the traditional functioning of the courthouse. Many states have adopted a wide array of programs to encourage or require the use of ADR or Complementary Dispute Resolution (CDR). They became an integrated part of dispute resolution systems.

Much has been done by judges and courts since 1976 to advance the notion of the “multi-door courthouse.” The increased use of ADR can be thought of as a three-legged stool that requires the continued support of the neutrals, the litigators, and the clients in order to stand firm. The focus of the ADR community has been on training the neutrals and reorienting the litigators. But in doing so, the end users have been largely ignored. The business people whose disputes we help resolve have been omitted from the process. Much has been achieved, but in order to reach the level of success envisioned 40 years ago, the needs of the disputants must be more fully addressed.

Neutrals: The First Leg of the Stool

The first leg of the stool is made up of the neutrals. Training seasoned mediators and arbitrators is commonplace. Such training is widely available through bar associations, the courts, mediation societies, and other institutions. ADR courses are currently part of most law school curricula, encompassing both dispute resolution courses and clinics. Basic mediation training often focuses on the structure of the process (opening statements, joint session, and caucus, etc.), negotiation theory and impasse-breaking techniques, confidentiality and the corresponding ethical issues; as well as legislative components such as the Uniform Mediation Act and local rules of court that incorporate the use of ADR. Role plays are often a fundamental component of this training, highlighting the importance of information gathering and teaching active listening techniques.

The participants in mediation training are often lawyers but may also come from such fields as accounting, engineering, human resources, clergy, and mental health. Many jurisdictions require a minimum number of hours of training, and impose mentoring obligations for the newly trained in addition to regular continuing education going forward. Of note, there is a proliferation of subject-specific ADR training in such fields as employment, construction, healthcare, and bankruptcy, just to name a few. All of this is done to assure that a well-qualified cadre of neutrals is available to the public.

Litigators: The Second Leg of the Stool

The second leg of the stool is made up of the litigators, who regard the courtroom as their sanctuary. An experienced litigator controls the flow of information and zealously represents his client. A savvy litigator is a skilled professional who is a master in this adversarial setting. A key component required to make the “multi-door courthouse” function is to “sell” the notion to the litigators. These members of the bar have very well established, predictable court rules that are woven into the fabric of our judicial system. These history-laden processes are still followed by judges who administer the rules, by our major law firms who embrace the rules, and by young lawyers who are taught the rules. Litigants are forced to follow complicated, costly, and time-consuming methods of discovery, as well as rules of civil procedure and evidence production.

The key to gaining the support of litigators for ADR is to assure them that they are neither eliminated nor minimized in the process. Instead, ADR means that they may offer their clients another service. If mediation is possible, the client has a unique opportunity in the justice system to participate, to speak without formality, and to listen to the opposing party. Confidentiality will be protected and the formality of the courtroom suspended. The client can preserve relationships and reach results that are simply unavailable in the courtroom. Currently there are many seminars offered to litigators on mediation advocacy, which focus on the differences in advocating for a client in a mediation as opposed to the courtroom setting. If arbitration is the process of choice, the parties handle the dispute in a private, more cost-efficient manner that incorporates a means for the parties to choose their own neutral.

Disputants: The Third Leg of the Stool

The third leg of the stool is the client who is embroiled in a dispute and is faced with selecting a method for resolving this conflict. Colleges and particularly our business schools have an opportunity to expose the next generation of business leaders to the wide range of ADR options by placing greater emphasis on ADR processes in their curriculum.

Many of today’s youths have already been exposed to the concept of mediation through peer mediation programs in their high schools. This is a form of conflict resolution in which trained student leaders help their peers work together to resolve everyday disputes. Participation in peer mediation is often voluntary and the data indicates that the success rates are very high. Often students reach an agreement that satisfies not only the parties, but teachers, administrators, and parents as well. When students choose to end a conflict in mediation, it is often resolved for good, because mediators encourage peers to discuss all issues in dispute, not only the precipitating incidents. Even in cases where written agreements do not result, parties often learn enough about the situation to defuse their conflict.

I have been able to use the students’ familiarity with peer mediation as a starting point to bring ADR into my business law classes. During the past 15 years, I have seen our texts go from a page or two devoted to ADR to an entire chapter. Not only are the students learning the concepts and studying the key cases, but I have found that sharing the role plays that we traditionally use for mediator training is also a means to truly engage them in the process. In addition, I have adapted some of my own mediation cases into role plays. The students are particularly interested in comparing the results they have reached in their role play exercises to the actual outcome achieved between the real disputants. Taking the time to truly expose the next generation of managers to the value of ADR is a critical component in advancing the successful use of ADR in resolving future commercial disputes.

The Global Pound Conference 2015–2017

This year the Global Pound Conference (GPC) is being held internationally specifically to find out what businesses want from ADR. Stakeholders in the fields of dispute prevention, management, and resolution are gathering in 38 cities in 29 countries worldwide. The goal of the GPC is to change the culture and methods of resolving commercial disputes. The GPC provides an opportunity to define the way disputes of the future should be resolved in our increasing global economy. Information will be gathered at each event and a final report addressing the needs of the disputants will be issued by the end of 2017.

The Education of Future Business Leaders

Although the courts will continue to play an important role in the evolution of dispute resolution, justice needs to take place outside of the courtroom. Appropriate dispute resolution that complements the judicial system needs to be our focus. Whatever data is gathered from this current Global Pound Conference, let us not forget that our classrooms have created an opportunity to showcase the wisdom of the expansion of ADR. If ADR training is embraced in undergraduate and graduate institutions in a more meaningful way, attorneys will no longer be faced with the prospect of reticent clients being reluctantly steered toward ADR. Our goal is for the use of ADR by the legal community to become a familiar concept to the business community that will be readily embraced by disputants and perhaps even actively requested.

Let’s educate our future business colleagues so that they can better understand what the alternatives look like. It is incumbent upon the leaders of the legal ADR community to reach beyond our traditional training grounds and realize what a fertile opportunity college and graduate schools provide to helping us reach the goal announced 40 years ago, so the “multi-door courthouse” becomes a true reality.

Terri Roth Reicher, Esquire, is the immediate past president of the Justice Marie L. Garibaldi AIC for ADR in Basking Ridge, New Jersey. She is a professor at the William Paterson University Cotsakos School of Business and is a frequent ADR trainer for the Institute of Continuing Education of the New Jersey State Bar Association and the New Jersey Association of Professional Mediators.

© 2016 TERRI ROTH REICHER, 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, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.