Economic turmoil, technological advances are gathering to create A Perfect Storm that “will force lawyers to change their attitude and perspective.”  Gone are the days of blank-check litigation.  ““Resolvers” will replace “litigators.”

Who’s saying these things?  The authors are in-house legal counsel for twelve multinational corporations.

Lawyers: ride out the storm by providing a new service for your clients. Get a new dispute resolution tool for your lawyer’s toolkit to go with your litigation hammer. Your clients are moving beyond litigation and beyond the courthouse – can you keep up with them?

Some people hold the preconceived notion that their approach – private or joint – is always better, all the time, for all people and in all cases.

These preconceived notions come from the real experience mediators and attorneys have had. Litigators and litigation-context mediators know that there are things that they can do in private meetings that they can’t do in joint meetings. Other mediators know that there are things that they can do in joint meetings that they can’t do in private meetings.

Some have had bad experiences with joint sessions. Some have had bad experiences with private sessions.

Why is that?

These different approaches have been used in two separate contexts, of course. Private meetings tend to be used more in litigation-context mediations. Joint meetings tend to be used more in mediations outside litigation. In each context, the professionals have been better skilled at the approach they use more, and it proves more helpful. And in each context, the other approach has not been used as often, the professionals aren’t very good at it, and the few times they try it, things don’t go so well.

Not all mediators and lawyers have the skill-set to work effectively in private meetings.  And not all mediators and lawyers have the skill-set to work effectively in joint meetings.

So it’s no wonder some are better with one approach more than the other, they get better results with it, they have their preferences for it over the other. It’s not surprising that these preferences turn into pre-conceived notions about what’s best, or even into beliefs about what is right and what is wrong.

I encourage mediators and lawyers to reflect on their experiences with joint/private meetings and what pre-conceived notions they have formed about them. And to learn more about and gain some skill in using the approach they’re less familiar with. Then they’ll be in a better position to say – in each particular situation, with that particular mix of people and the professionals’ skill-sets – which approach might be the one to use.

How come?  What do we mean by “alternative?”  Why is it important for some to call it that?  Why is it important for some not to call it that?

Within the community of those who work in processes other than litigation, it’s now more commonly called just “dispute resolution.”  (Though some groups are avoid changing their acronyms by changing the “alternative” to “appropriate.”)  It is more often within the legal community that we hear it called “alternative” dispute resolution.

The concept of an alternative only makes sense within the context of being an alternative to something else.  Here, that referent is unstated, but implied and clear.  It’s pretty well understood that when we hear “alternative” we know what’s meant is “alternative to litigation.”

Litigation is the dominant paradigm in our society for approaching disputes.  It’s not the most used, of course, because it’s priced beyond the means of so many people.  But it is what most of us think of first when we think of conflict.

The term “Alternative Dispute Resolution” stands firmly in a narrative viewpoint centered on litigation, law and lawyers.

Yet to describe the full range of all the methods that human beings can use to approach their disputes as  “alternatives” to litigation seems to be missing something important.  It glosses over the essential characteristics of both litigation and its “alternatives.”

To get at those essential characteristics just stand the concept on its head.  I will at times provocatively describe litigation and the legal system as ADR — as the alternative to people working out their resolutions to disputes themselves.

Maybe, at this point, still, some 30+ years into the development of ADR, the easiest way we can describe what we do is that it is “not-litigation.”  But being fixed in a particular narrative vantage point limits our thinking.  It’s like calling the ocean “not-boat” or the vast reaches of the cosmos “not-earth.”

What is the essential nature of litigation?  What is the essential nature of each of the other dispute resolution approaches?