Brief Observations on the Role of Counsel in Alternative Dispute Resolution

One of the great areas of uncertainty in the context of ADR, is the extent to which, and if so, the role that lawyers should play in the process. The reality is that there is no straightforward answer to settle the uncertainty.  The lawyer’s role will vary greatly depending on the nature of the dispute and the type of alternative dispute resolution process. What this entry does is to seek to briefly explore some basics of the role of counsel in ADR.

Availability of ADR
Depending on the sophistication of the client or its experience with ADR, the one thing that will more often than not be required, is that counsel will need to provide practical and legal advice on the available ADR processes and the issues might arise in that respect.

Ultimately, Counsel’s primary objective ought to be to work with the client towards achieving the best solution that the client needs. The reality is that in most cases, a client’s best interests are served by not  going to court if he can get relief by alternative means which will be quicker and less expensive than litigation. In this respect,  counsel is therefore obliged to explain to the client the different options available outside litigation thus giving the client the opportunity to explore settlement by way of alternative dispute resolution. It is counsel’s role to explain advantages (and drawbacks) of alternative dispute resolution as compared to litigation.

For example, when disputes arise, it is not fanciful to think that the clients who are the very front of the dispute will not have considered the waste of human and financial resources that litigation entail, or that litigation can extend from one year to ten years, or the potential destruction of an on–going business and breakdown of community or family relationship that might arise. Counsel should accordingly bring these issues to the client’s attention.

The Relevant Process
If after being advised as to the option of ADR, the client decides that the option is for him, then counsel will have to educate the client on the ins and outs of the relevant process. For example, if the client seeks to mediate the dispute, Counsel will be required to advise him as to the process of mediation, the role of mediator as a neutral facilitator as distinct from a judge, and, that the lawyers and clients should at all times act in good faith in trying to achieve agreed settlement of the dispute. Counsel should also explain to the client what it means to act in good faith; and reassure the client that if he suspects that the other party to the mediation was acting in bad faith, he would raise the matter privately first with the mediator.

The Underlying IssueAs well as the process by which the dispute is to be resolved, Counsel would also be required to analyse the underlying issues giving rise to the dispute, in order to determine the client’s interests and explain to the client the action(s) that need to be taken during the course of ADR and why. Counsel should endeavour to use positive oral and nonverbal communication skills when trying to elucidate the relevant issues from the client case.

It is crucial, as most counsel would already appreciate, that counsel maintains the confidentiality required by the parties and the rules of the relevant alternative dispute process, if any. For example, in the context of mediation, counsel must not disclose during the mediation unless all the parties to the mediation agree or if required by the law. Further, without the permission of the mediator and the other party's lawyer must not reveal any information disclosed by the mediator during private sessions to the other party or their legal representatives.

Getting the other side to the table
One of the trickier tasks for Counsel once alternative dispute has been selected, is persuading the other side to join in the process of alternative dispute resolution. Counsel must ensure that the matter is suitable for alternative dispute resolution and the time is ripe to suggest it to the other side. If there is an alternative dispute clause in the agreement, which is the subject matter of the dispute, draw the attention of the opposing side to it. Counsel can also refer the opposing side to the rules of court that encourage alternative dispute resolution. If the other side is ignorant about alternative dispute resolution, a short explanation of what it entails will not be out of place. However, Counsel should ensure that he states all the advantages (and possible drawbacks) of the relevant alternative dispute resolution process including the uncertain outcome of a

When not to engage in ADR
Naturally, there are however some situations where counsel has to advise his client against engaging in alternative dispute resolution. In particular, this is the case  when the client needs immediate relief like an injunction or where the Court’s assistance is required to interpret terms of a long term and ongoing contract.

The above is a brief canvass of some of the fundamental functions of counsel vis-à-vis his client in respect of the ADR process. There are many others to consider, in particular, the functions of counsel during the course of process itself, which will be the subject of further entries.

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