10 QUESTIONS ON ADR
4. How should I tell my client? Opposing counsel? The court?
Tell the client about cost, control and certainty. Tell opposing counsel about accommodating interests, the importance of preserving relationships or a likely “hot button” concern of the other client. Tell the court you want to resolve the case without trial.
Clients want your honest advice. In addition to the concerns with cost, control and certainty, they want to be treated fairly. They want to know why the person conducting the ADR would be better than the person wearing the robe. They want to know that that person will listen and try to understand them and their position. If you cannot honestly recommend the form of ADR or the proposed person, don’t. Recommend only what you truly believe to be in the client’s best interests.
All opposing counsel want an exit strategy that “first does no harm.” Most want to know that you are not “trying to pull a fast one” by proposing an ADR form or person stacked in your favor. And many will want a process that offers to accommodate them, their client and their position in some way. Be prepared to sell your concept of ADR as balancing the interests of both sides. List out talking points that the attorney can pass along to the client, especially the importance of preserving relationships when there are children, a quicker route to a final decision, confidentiality of private matters, cost, or any likely “hot button” concern.
Judges want cases to go away and not come back. Many are knowledgeable about the different forms of ADR and quite gifted at selling a reluctant adversary. Don’t be afraid to involve the judge in discussions about selecting the process or the person or modifying procedures to fit your particular interests. Many can offer “impartial” suggestions that are acceptable to both sides. Most will enter orders referring cases to ADR without hesitation.