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Putting Away The Dueling Pistols

By James H. Andrews / December 20, 1993



`SEE you in court.'' With that phrase, lawyers and their clients long have challenged adversaries to a fight to the finish. With increasing frequency, though, a phrase heard today is, ``See you around the table.''

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As many participants in the legal system - lawyers and litigants, but also judges, legislators, and scholars - grow frustrated and alarmed by bulging court dockets, years of delay in getting to trial, and skyrocketing litigation costs, there is surging interest in alternatives to courtroom combat for settling differences.

Responding to this demand, alternative dispute resolution (ADR) is a growth industry. Combined revenues of the major ADR providers now approaches $100 million a year.

``Industry'' is used advisedly. The field no longer comprises a handful of arbitrators engaged mainly in settling labor disputes. Providers of ADR services are mushrooming across the land, ranging from individual practitioners to large companies. As the field has matured, it is experiencing the competition, marketing, product development, strategic positioning, and consolidations of any other industry.

This month two prominent ADR companies, Washington, D.C.-based Endispute and San Francisco-based Bates Edwards Group, announced a merger that will make Endispute the third largest firm in the field, behind the nonprofit American Arbitration Association and Judicial Arbitration and Mediation Services Inc. The merger broadens Endispute's territorial coverage and extends its line of services.

ADR refers to a range of procedures, all designed to resolve legal disputes without a full-blown trial: arbitration, mediation, private judging, summary jury trials, minitrials, and various hybrids. The common elements are the use of trained, neutral people to foster discussion between opponents, and relaxed rules regarding discovery and the presentation of evidence.

Some states have court-annexed ADR programs, whereby judges can order litigants to use ADR before going to trial. In most states, though, ADR operates outside the court system.

With their mounting concern about legal costs, many corporations are embracing ADR. Motorola made a commitment to dispute resolution in the mid-'80s, explains Hans Stucki, the electronics company's senior litigation counsel. After a period of ``acculturation'' during which company lawyers learned to suspend their confrontational instincts in some circumstances, Mr. Stucki says, his department now resolves 12 to 15 commercial and employee disputes each year through mediation.

Besides the savings in time and money, Stucki says, Motorola likes mediation because the parties ``can fashion real-life remedies that preserve business relationships, which courts can't always do.''

ADR courses are spreading in law schools, according to Prof. Jennifer Brown, who teaches courses in dispute resolution at Emory Law School in Atlanta. Within the last decade, she says, legal educators began thinking of ADR as a discipline and not just an adjunct to labor law. ``Students should come out of law school knowing about ADR just as they know about trial procedures,'' Professor Brown says. Students are hearing that not only from some professors, she adds, but also from potential employers.

The American Bar Association recently upgraded a committee of lawyers interested in ADR to a more formal and influential Section of Dispute Resolution. Its purpose, says John R. Van Winkle, an Indianapolis lawyer-mediator and chairman-elect of the section, ``is to foster and promote ADR in civil, criminal, and administrative settings.''

``I have angry people coming into my office for a mediation and they leave shaking hands,'' Mr. Van Winkle says. ``That never happened in my 26 years as a litigator.''

The section is not just an ADR cheerleader, though. According to Van Winkle, its members are examining nettlesome issues such as the extent to which ADR is creating a swift and confidential ``privatized legal system'' for people who can afford it, and how to raise ethical and skill standards among ADR providers.

Van Winkle notes wryly that ``some lawyers act as though we invented ADR.'' Not so, he acknowledges: ``Dispute resolution has been around for quite a while in other areas.'' He says he tries to ``reassure dispute-resolution professionals that lawyers won't mess up the field by introducing advocacy into procedures intended to get away from advocacy.''