To a hammer, all the world is nails. How we view disputes is often the result of our personal perspective and values. As an attorney, I often give this advice when asked for cocktail party legal advice. “Do I have a claim for this?” “Can’t I sue for that?” “Is that legal?” To a clever lawyer, all disputes can be solved through a lawsuit. So, nails. Really expensive nails. We are talking government supplier priced nails.
The truth is that an answer as to your legal “rights” depends a lot upon whom you ask. Frankly, the law is not static; it is open to interpretation based on the individual facts of a particular situation. This inconsistency drives people crazy, especially in our current legal and political climate. It drives some lawyers crazy, too. The legal issue, however, is only part of a lawsuit.
Too often, we forget the larger picture of what we really want or need when faced with a dispute. Harping only on the legal issue can lead to a real mess in people’s lives, ignoring what is best for you, your family, your business or your property. Good lawyers weigh the uncertainty and the practical realities of litigation (costs, stress, business disruption, etc.) and include options related to “alternative dispute resolution” or “ADR” in their advice to clients.
ADR is simply lawyer-speak for “let’s stay out of court and pursue a truce.” It comes up in arbitration with professional athletes and in mediation with celebrity estates. But, you don’t have to be a celebrity to use ADR.
Often, people use mediation or arbitration to privately resolve disputes, either during litigation or without litigation. Why? With respect to mediation, which involves facilitated negotiations, in which the parties agree to a compromised outcome, the process is cheaper than litigation, less public, voluntary, done on your schedule, and you don’t have to pay to hang out with lawyers forever. Win, Win, Win, Win, and Double Win.
With arbitration, you have to be a little more careful in selecting the provider and the rules, because arbitration can start to look – and cost – like litigation, if you don’t get wise counsel on the terms of arbitration. So, be wary about arbitration provisions in contracts. That said, arbitration is still faster, more convenient to your schedule, and private unlike litigation.
In family disputes or issues, such as divorce, same-sex family dissolution, and elder care/probate disputes, mediation is particularly effective. Due to the emotions and relationships involved, mediation is well-suited to positive and successful resolution. Families have the freedom to craft workable, ongoing solutions, with or without attorneys, and move forward without exhausting their financial resources or being placed at the mercy of the courts’ processes.
So, there is significant value in pursing ADR in many cases. And, the value of ADR is both monetary and non-monetary. Thus, the pursuit of truce through ADR may be preferable to investing in nails.
To learn more about ADR, go here and look for future articles on how ADR can be effective in specific areas of dispute or disagreement.