One reason we changed the name of our firm recently to Dispute Resolution Counsel was to highlight the role that lawyers play in representing their clients in an alternative dispute resolution (ADR) processes. The role, approach and technique of a lawyer in these situations are different from that of a litigator. The focus and the goal of the process are different and the process itself is different from litigation and trial. In a world of specialization and niches, this different process and different role calls for a different kind of lawyer. Not only is the training for this role different but the whole feel and intuitive skills are different. Some of this can be learned and obtained through training and practice. But part of this is just inherent intuition and it cannot be taught. That part is the realm of insights, innate ability and presence.
The word “different” appeared in the last paragraph seven times, naturally, but also to stress a point. This ADR area of law calls for a different skill set. To just plug any litigator or other kind of lawyer into this role would be doing the client a great disservice. You wouldn’t use a transactional lawyer to try a case just as you wouldn’t use a clinical research doctor to do surgery. And surgeons do not usually serve as primary care physicians because (a) they probably have no interest in doing so and (b) they do not have that skill set.
ADR processes, unlike litigation and arbitration, are not adversarial processes. They are not zero sum game, win-lose situations. The degree of victory is not determined by the other side’s degree of loss. Any kind of “hide the ball” strategy when it comes to information exchanges, or the practice of continually hammering away at the other side’s flaws and weaknesses are counter-productive. The focus of ADR is on the present and the future outcome, not the past and the laying of blame. These are processes that work to find shared interests and work toward connection, instead of harping on differences and driving people apart.
On the contrary, knowing what the other side’s needs and interests are is productive. Information is viewed as a shared asset, not a strategic weapon. Active listening to the other side is productive. The quality of the end resolution depends on both sides winning, not one winner and one loser. Collaboration of clients and lawyers working together not only replaces the adversarial approach; it also replaces compromise in the sense that compromise calls on us to give up something important (win- some lose). These processes have a goal of win-win and their challenge is how can we solve the problem so both sides get what they want. That’s what makes these approaches so valuable to clients.
There is a special niche in the legal profession for this role of focused representation, serving clients as settlement counsel or collaborative counsel. As clients demand better value in legal services and as lawyers are driven to develop better ways to serve their clients, this new niche will continue to grow. Some lawyers try to represent clients as both their litigators and their settlement counsel; some clients try to cut costs and corners by hiring one type instead of two. Every once in a while, you might a person who is gifted both as a litigator and also as settlement counsel. But given how different the mind-sets and strategies of these two are, it is not likely that one lawyer will be able to (or want to) serve both roles.
My experience, having been a litigator as well as working as settlement or collaborative counsel, and having sometimes tried to serve clients in both roles, is that clients are better served if they have different lawyers who are trained for this special kind of legal representation, limited to Settlement Counsel or Collaborative Counsel. The rules of Collaborative Law mandate lawyers that are at the very least trained in Collaborative Law. But even in mediation or other dispute resolution processes that are based on satisfying interests (interest-based), this focused representation by a lawyer who specializes in this niche is the better course of action for clients.