With the coming of the information age and the increasing
reliance on information technology, consumers have become
increasingly savvy in how they research and shop for good and
services. Legal services are no longer an exception to that trend.
Today's potential clients searching for lawyers as well as legal
information on the internet are not only beneficiaries of easier
access to legal information, forms and services, but are also more
educated on the law.
Having access to information is one thing; knowing where to go
with it or what to do with it is another. This is where today's
lawyer's value is found. People can probably figure out the right
practice area (i.e. real estate, employment, commercial, divorce,
etc.) in which to look for a lawyer. They can find the forms, the
documents and the basics of the law online. But the information has
not been refined yet. Nor has it been applied to their situation.
What clients can't find in the early going, either on line or
talking with friends and family is what they need the most: The
trusted and wise legal counsel of an experienced lawyer who is
responsive to their needs.
This is especially true when it comes to finding and choosing
the right dispute resolution process for their situation.
Influenced by television, movies, America's overly-litigious
culture and one or more well-intentioned relatives or friends
telling them they need to find a pit bull litigator, clients
usually fail to make good choices when it comes to choosing a
dispute resolution (DR) process for their dispute. One reason for
this is that their choices at this point are being driven by their
emotions and egos. Another reason is that they have very little
knowledge or education on what options are available to them, with
few people able or willing to discuss these choices.
What clients need at this point is someone to assess their
situation, educate them on their options and guide them to the
right process choice. Often, the clients' search for a lawyer for
their dispute will usually will lead them to a litigation firm.
Litigators, following their natural and understandable zeal to sign
up the client for litigation are most likely to do just that. One
can't blame litigators for that desire any more than you would
blame a surgeon for wanting to do surgery, rather than to see if
chiropractic treatment will resolve the medical issue. This is how
navigating the legal system works (or doesn't). Clients are
thinking about and seeking out their hired gun, their warrior,
their scorched earth pit bull. When they are looking for their
Atticus Finch, their Lt. Calley or even their Cousin Vinnie
Gambini, it's tough at this point to talk them off the cliff.
Yet, that is exactly what they need. Real life disputes are not
like TV or movies. First, less than three percent of the cases that
get filed in court ever get to trial. It happens rarely, and when
it does, it is not the stuff of Hollywood. Most clients do not
understand how the litigation process works, and believe it to be
their only effective option. It's not uncommon for the parties to
be appreciative of alternate options when they learn more. Once the
parties know there is an overwhelming likelihood of settlement,
they more easily recognize the correlation between their
circumstance and an appropriate DR process.
This choice of which DR process to use is critical to the
clients' reaching a good resolution of their disputes. It also
calls on lawyers to do some "situational law" thinking. This is an
important and valuable role for lawyers to play - that of legal
counsel, guiding our clients to the right course of action for
their circumstances. Before the client signs up with any litigator
or agrees to Mediation, Arbitration, Collaborative Law,
Conciliation or anything else, he should work with a lawyer to come
up with the DR approach that responds to the situation that the
dispute presents. Dispute Resolution is no longer "one size fits
all." Lawyers and neutrals can provide outstanding service to
clients and parties by guiding them to the right process and in
some instances, designing the DR process to fit the
An efficient approach would be to conduct a three part DR
process assessment with the potential client. This is not a "free
consultation." Nor is it a legal analysis of the facts and
applicable law in this case, or an evaluation of the strengths and
weaknesses of the case. It's a reality check; a thorough
examination of the client and their situation, including their
emotional and financial bandwidth, pragmatic needs, level of risk
aversion, time frame needed for reaching full resolution, etc. The
assessment, followed by an educational primer on DR options, and
concluding with a reasoned, objective recommendation as to the
process(es) most likely to resolve their predicament while allowing
them to maintain as much input and control as possible, is what the
savvy, cost-conscious client of today seeks.
Here are some questions a lawyer conducting a DR process
assessment would ask:
- What are your goals and interests? What would a good outcome for
you look like?
- Have you considered other ways of accomplishing your goals
- What is your time frame? How soon do you need or want to put
this issue behind you?
- How important is it to maintain a healthy (business, civic,
organizational or family) relationship with the other
- How important is confidentiality to the parties in this
- What is your level of risk aversion? Put it this way: A jury
could decide this case the other way and you'd get nothing after
spending several years and several tens of thousands of dollars on
this litigation. How does that sit with you?
- Are there other parties and other considerations that we can
include in our assessment of this dispute that will help us expand
the pie of possible options for settlement? Does this dispute call
for creative solutions beyond what the courts can provide?
- Are you willing to collaborate towards resolution with the other
side, with professional assistance and counsel from
non-adversarial, negotiation-style lawyers and/or a mediator?
- Do you want to have a say in the process and the outcome? Are
you comfortable leaving the decision-making about your case to a
jury of people you don't know?
- Would you feel better leaving the decision to an arbitrator who
is very knowledgeable in the subject matter and applicable law in
This assessment lays a solid foundation for moving the client
forward in a way that will achieve the best outcome. It is followed
by educating the potential client on what DR process options are
best suited to the dispute, how each one works, when they are
typically used, and the pros and cons of each one.
This assessment, education and recommendation is vital to the
client in order for them to make a good, informed choice as to the
most appropriate DR process. It is a service that gives the client
real value, and establishes a level of comfort in the process
choice ultimately selected. It is something that the client should
be charged for (I recommend pricing it on a flat rate basis) as you
are providing an education and a blueprint that is responsive to
the situation. It is also a niche legal service which a lawyer can
add to their toolbox of valuable services.
Carrying out this assessment and recommendation step sometimes
means that we as lawyers or neutrals refer clients to other
practitioners as the situation dictates; in the long run, that too
results in benefits. It helps all practitioners by funneling the
disputes to the right processes and lawyers, which is beneficial to
the entire DR community as well as the overall communities we
serve. Finally, as more lawyers provide this beneficial effort, we
restore the confidence of our clients and of society in our
profession. We affirm our roles as problem solvers and in some
cases, as peacemakers. As Abraham Lincoln noted in his 1850 "Notes
for a Law Lecture," "As a peacemaker, the lawyer has a superior
opportunity of being a good man. There will still be business