Using an ADR Attorney

Suppose you're looking to arbitrate or mediate a dispute. In that case, you might wonder if having an attorney during the process is a good idea. The rules for hiring counsel are different for these two forms of alternative dispute resolution (ADR) than for litigation or other court proceedings.

This article will discuss attorneys' roles in different types of alternative dispute resolution such as mediation and arbitration.

Do I Need a Lawyer for My Mediation Session?

Parties to a dispute often voluntarily enter into mediation, a form of ADR. There are other times when courts require the parties to attempt mediation as a matter of course. One example is a divorce involving a minor child. Other family law matters are often subject to mediation.

Most contexts in which people find themselves in mediation don't require the parties to obtain their own legal counsel. Still, there are some situations where retaining a mediation lawyer is a good idea. Mediation lawyers understand the legal issues and are familiar with the mediation process.

The process of mediation itself is generally easy to understand and collaborative. However, suppose your property rights will be affected by the outcome of the process. In that case, professional assistance can be helpful in understanding the consequences of certain decisions.

Considerations for Hiring a Mediation Attorney

When hiring an attorney for mediation, it's vital to ensure they support the mediation process. Ideally, the lawyer you choose has mediation training. Most attorneys are trained to be zealous advocates. As a result, some lawyers dislike mediation as a dispute resolution process and are more comfortable with traditional litigation. This attitude can be an obstacle to successfully reaching a mediation agreement.

An attorney can help with the mediation process by:

• Reviewing all written agreements before signing
• Providing legal coaching or consultation at various junctures
• Preparing materials for use during negotiation

You will want to have a frank discussion with your attorney about what you expect the attorney to do at mediation and any fees or fee structure for the session(s) and follow-up work.

Using Arbitration to Resolve Legal Disputes

Attorneys are more commonly used during the arbitration process. Arbitration is the most formal alternative to litigation. The disputing parties are expected to present their side of the case to a neutral third party who makes a decision. Arbitrations have fewer rules than court cases and are often less time-consuming.

Arbitrators typically have more expertise in the subject matter of the dispute and more flexibility in crafting decisions. The format of an arbitration is similar to that of a court case. The format includes:

• Opening and closing arguments
• Witnesses who present testimony
• Documentary evidence

The rules of evidence and other procedural rules are simplified, however. An arbitrator's decision is often a binding decision. If you're involved in binding arbitration, an attorney can ensure a better outcome.

There is a trend towards compulsory arbitration in the following areas:

• Public sector employment disputes
• Court-annexed programs
• Medical malpractice disputes

Certain other civil suits also include a compulsory arbitration component. This trend toward mandatory rather than voluntary arbitration is one reason why retaining an attorney to assist with arbitration is becoming increasingly common. Parties generally have no right to trial when unsatisfied with the arbitrator's award. They may be liable for a share of court costs or the arbitrator's fees depending on the contract terms.

Learn More About Alternative Dispute Resolution Attorneys

Click on any of the links below to learn more about selecting a lawyer for your ADR procedure.

• ADR Resources: Here you'll find diverse resources related to alternative dispute resolution (ADR). There are links to ADR documents, briefs, and articles.
• 10 Questions to Ask Your Attorney: This article addresses what to ask attorneys before entering into a working relationship.
• Do I Need a Mediation Lawyer?: This article can help determine whether you need to hire an attorney to help you with the mediation process. There's a list of essential considerations.
• Where to Find a Lawyer: This guide walks you through finding the right attorney for your specific needs. There are suggestions about word-of-mouth referrals, state bar associations, and FindLaw's lawyer directory.

Get Legal Help

You don't have to navigate the ADR process alone. Speak with an experienced attorney who can help with decision-making as to whether you'd benefit from legal representation in ADR proceedings. An attorney can also educate you about the different types of ADR and put their expertise to work for you.