Volume XIV, Issue V
November/December 2000

Alternative Dispute Resolution

By Judge George Finkle (Ret.)

[Editor’s note: Judge Finkle wrote this article after receiving a request to do so from yours truly. He structured his comments based on issues that I presented to him during our initial discussion of the article. ADR is in many ways a mysterious area of the legal profession and it was my intention to demystify it a bit by asking someone who works in the field daily who has the expertise to answer with authority.]

All lawyers understand that ADR exists, but what may be murkier is ADR’s place in the landscape of legal practice. In the following comments, I have attempted to provide some insight into ADR based upon my experience as a mediator and arbitrator at Judicial Dispute Resolution.

Broadly defined as the resolution of legal disputes outside the courtroom, ADR is old hat. For as long as courts have existed, lawyers and parties have pursued formal and informal alternatives to trial.

But by 1973, when I was admitted to practice, ADR was typically limited to lawyer or party negotiations, voluntary judicial settlement conferences and arbitrations under the Mandatory Arbitration Rules ("MARs") of low-value tort claims. In recent years, however, the scope of ADR in Washington State has dramatically expanded. This expansion has been fueled in part by an increasing number of MAR arbitrations. The more fundamental shift in ADR, though, has been the use of private mediation and arbitration.

I would be surprised if, a dozen years ago, a single lawyer or retired judge devoted substantial professional time to ADR. Now, as demonstrated by pages of advertisements in the WSBA and King County Bar Association periodicals, dozens of lawyers and former judges in King County alone practice as mediators and/or arbitrators, and many more seek to gain a toehold.

The rising cost of discovery and trial has prompted attorneys and sophisticated client/consumers of legal services to recognize ADR as a cost-effective alternative to full-blown litigation. Commercial and other contracts now frequently require mediation and/or binding arbitration, often specifying an individual or firm as the arbitrator or mediator in case of disputes.

The reasons young lawyers are likely to find themselves using ADR include pressure from the courts (in King County, all civil case scheduling orders require mediation/settlement conferences before pretrial conferences); pressure from clients (who strive to limit costs and may also seek to maintain working relationships with litigation adversaries); and pressure from law firm partners (who recognize that attorney fees must be controlled or clients will balk).

What types of cases typically come through the door of ADR organizations and how do they get there? The variety of cases appropriate for ADR is as broad as the range of cases in the overall practice of law. Since I joined Judicial Dispute Resolution in October 1999, I have mediated filed and pre-filing federal and state disputes related to employment discrimination, professional negligence, personal injury, family law, insurance coverage, commercial transactions, intellectual property, securities and many other areas. This range of cases is consistent with the practices of my JDR colleagues, but some fine ADR lawyer practitioners focus in the areas of their expertise (e.g., family law or construction). ADR work is usually repeat business or referrals from particular lawyers, law firms or practice communities.

With this brief background, a few homely tips for a successful mediation or arbitration follow:

(a) Seek a mediator who will be viewed by all parties as experienced and persuasive. A successful mediation requires an experienced neutral, not an advocate for your client’s views. Seek an arbitrator with a verifiable track record of decisions that are reasonably sympathetic to your cause (or more likely, if your adversary is to agree to your selection, a record of at least moderate decisions). Don’t forget that you and your client will have to spend considerable time with the arbitrator or mediator, so select someone likely to be congenial as well as effective.

(b) Prepare your client for mediation. You will no doubt have been a warm advocate during the time leading up to mediation and would be a tiger at trial. But your client needs to hear from both the mediator and from you about the risks as well as the strengths or his or her case, even if this is unwelcome. Don’t worry so much about your client feeling betrayed by your lack of zealousness for his or her cause that you fail in your duty to provide objective advice. Over-identification with clients and lack of client control are among the most common vices of young lawyers in mediations (and in general). These vices too often cause the polarization of the parties and the failure of what could have been successful mediations.

(c) Try to avoid submitting materials to the mediator that you do not share with the opposition. You can present confidential concerns during the mediation, but it is usually important that your adversaries understand in some detail the ammunition you will bring to bear if mediation is unsuccessful. Schedule a face-to-face meeting with your client a day or so before the mediation during which you review your adversary’s mediation materials and discuss your own mediation goals and tactics as objectively as possible.

One concern that some lawyers have expressed about ADR is its potential impact on caselaw development. It is true that Washington State appellate courts would have published opinions in a considerable number of cases that settled in mediation during the past ten years. But it is tough to make the argument that cases capable of being settled in mediation should be forced to trial based on the possibility that they might generate significant published opinions.

If binding private arbitration more often than not were substituted for trial in challenging civil cases, the development of Washington State caselaw would be at risk. At present, however, there are few private trials in cases of the sort that lead to published decisions. (Most are relatively routine tort or contract cases.)

Our state appellate courts labor under crushing caseloads and generate expanding volumes of published decisions each year. (Compare the number of pages in the Washington Reports and Washington Appellate Reports for 1999 with the numbers for 1959 or 1979.) Even if the appellate caseload were decreased by some diversion of cases to binding arbitration, the quality of appellate opinions and the resulting guidance provided to judges and lawyers by those opinions would likely improve.

If you are attracted to a career as an arbitrator or mediator, consider the following: Taking an indirect path to a mediation or arbitration career or practice area is probably most realistic. The lawyers and the parties must agree to their mediator or arbitrator. Successful private mediators and arbitrators typically trade on hard-earned reputations as skilled and honorable litigators in one or more practice areas, on active participation on Bar committees, and/or on judicial experience.

However, young lawyers interested in ADR can and should take advantage of pro bono or low-paid work as MAR arbitrators and as mediators. Volunteer opportunities also exist, for example in the mediation of apartment rental disputes.

Judge Finkle is a panelist at Judicial Dispute Resolution in Seattle. In addition to serving for 10 years on the King County Superior Court bench from 1989 through 1999, he was a civil litigator in private practice and was Deputy Director of the Seattle-King County Public Defender Association.

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