WHAT IS ADR AND WHAT HAS IT GOT TO DO WITH LAWYERS ?

ADR is short for alternative dispute resolution. ADR provides a voluntary alternative to the accepted practice of using the courts to settle civil disputes. The principle forms of ADR are adjudication, arbitration, conciliation and mediation.

A significant part of a lawyer's work involves advising and assisting clients to settle disputes. The various forms of ADR involve either alternative mechanisms for settling disputes reliant on negotiation as opposed to third party determination or alternative forums for third party determination. Since the judicial system is not central to these ADR mechanisms and processes, lawyers do not have exclusive rights of participation. Indeed, ADR mechanisms and processes have developed in response to perceived problems and disadvantages in the judicial process.

It is hardly surprising therefore if some lawyers believe that ADR is not only irrelevant to legal practice but also that the advent of ADR poses a threat to the livelihood of lawyers. Both views are incorrect. ADR is relevant to lawyers because it is attractive to lawyers' clients. Lawyers can beneficially participate in ADR practice provided they are prepared to adapt and embrace new concepts. Above all lawyers have to learn to jettison the litigation mind set and rethink approaches to dispute resolution to provide clients with the type of services which are now being demanded by their more discerning clients.

It is no longer disputed that ADR provides viable mechanisms and systems for dispute settlement. Whilst the growth of ADR globally has not yet matched its development in the United States a small but significant market in ADR is gradually being established internationally. ADR offers significant advantages for commerce and society over judicial dispute settlement and so, in an era where the consumer is king, it is inevitable that there will be further growth in the ADR sector.

Since a significant part of a lawyer's work involves advising and assisting clients to settle disputes, lawyers are faced with a choice. They can embrace ADR and actively engage in it or they can withdraw from the process and surrender the portion of their work that is assigned to ADR to a new breed of ADR practitioners.

Outside the court room much of a lawyer's dispute resolution work involves negotiation, so in reality conciliation and mediation are merely more sophisticated versions of what a lawyer already does. The difference lies in the fact that the negotiation at a mediation is not conducted in the shadow of the courtroom. This alters the dynamic of the negotiation and requires the negotiators to adopt a different mindset from that of the litigation lawyer. Adjudication and arbitration are merely variants on litigation practice which can be easily assimilated by lawyers.

Lawyers can advise clients on and represent them in ADR processes. Lawyers can become adjudicators, arbitrators, conciliators and mediators.