Lawyers face a great challenge in advising clients about what dispute resolution (DR) process to use. There are many DR processes and people are developing new variations all the time. The choice of process can have a huge impact on the parties. Thus it is important for lawyers to give clients good advice about the choice of process, though this is easier said than done.
This article suggests that local and subject-area legal practice communities use dispute systems design strategies to help lawyers counsel clients in choosing DR options. These strategies could include development of protocols for lawyers to assess DR options with convenient checklists, educational materials for clients, and trainings.
These strategies can include rules requiring lawyers to advise clients about DR options, but lawyers can easily circumvent these rules, which are not likely to be effective unless they are part of a comprehensive strategy.
John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution. He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison. He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation. The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money. His website, where you can download his publications, is http://www.law.missouri.edu/lande.