alternative dispute resolution in a nutshell

1、Alternative Disp. Resol. in a Nutshell § 1.INolan-Haleys Alternative Dispute Resolution in a NutshellThird Edition 2008Jacqueline Nolan-HaleyCHAPTER 1 INTRODUCTIONI. OVERVIEWThe traditional legal response to dispute

2、s between parties has been for lawyers to initiate the litigation process by filing a complaint or motion. Most lawyers who graduated from law school before the mid-seventies would probably choose this option instincti

3、vely. Many law students would also probably choose this approach simply because in the majority of law school classrooms the litigation process is assumed to be the appropriate means of resolving a client's legal p

4、roblems. Indeed, most law school courses on civil procedure are taught primarily through the study of adjudication. Law is studied chiefly through the analysis of appellate cases, all of which began with the filing of a

5、 complaint, motion or petition. When we add to this the television mystique of People's Court and Judge Judy, it is not surprising that much of the public and many lawyers think that the way to solve problems is by

6、 bringing a legal action.The chief purpose of this book is to disabuse you of the “one size fits all” litigation mentality and to help you understand and appreciate more creative problem-solving processes that are avai

7、lable through alternative dispute resolution (ADR). ADR is an umbrella term that refers generally to alternatives to the court adjudication of disputes such as negotiation, mediation, arbitration, mini-trial and summar

8、y jury trial. It is also known as “appropriate dispute resolution” and in some international contexts such as the International Chamber of Commerce, it is called “amicable dispute resolution.” ADR can be further distin

9、guished between private contractual processes and public processes. Even though some of the “alternatives” such as negotiation, mediation and arbitration, have been practiced for hundreds of years, they have achieved a

10、 new familiarity today as part of the ADR movement.This book does not blindly promote the use of alternatives to the traditional litigation process. Good lawyering demands more thoughtful legal and non-legal problem-sol

11、ving to help clients achieve their goals. Rather, the purpose of this book is to help law students understand a wide variety of dispute resolution mechanisms, including litigation, so that they can help clients choose

12、an appropriate process that fits their needs. The client's choice of process may not necessarily correspond to the ego needs of the attorney.It is certainly not possible in this book to catalogue, let alone describe

13、, every ADR procedure. Instead, the focus is on presenting the major processes of alternative dispute resolution—negotiation, mediation and arbitration as well as some well-known hybrids of these processes such as the

14、summary jury trial, early neutral evaluation, the mini- trial, consensus-building, and negotiated rule-making. For purposes of analysis and client counseling, ADR processes should not be lumped together. Each one may of

15、fer different advantages to a client.Copyright © 2008 West, a Thomson businessAlternative Disp. Resol. in a Nutshell § 1.IAlternative Disp. Resol. in a Nutshell § 1.IINolan-Haleys Alternative Dispute Resol

16、ution in a NutshellThird Edition 2008Jacqueline Nolan-HaleyCHAPTER 1 INTRODUCTIONII. WHY STUDY ADR?Studying ADR will help you to be a better lawyer. Most Americans who can afford to, consult a lawyer first when they bel

17、ieve they have been wronged. A lawyer's counseling, therefore, plays an important role in whether a party asserts a claim or brings a dispute into the public arena. Today, the professional responsibility codes of ma

18、ny states require that lawyers advise their clients of ADR options. If a lawyer decides that there is a legitimate claim and advises the client to proceed, the question becomes—what process or combination of processes

19、should the client use to resolve the particular dispute?For law students to focus exclusively on the litigation process is like medical students studying only surgery as a means of curing illness. Of course, that is no

20、t what medical students do. They study an extensive range of subjects for the treatment and cure of illnesses. Law students too must extend their focus beyond the litigation arena to a greater understanding of problem-

21、solving approaches. The legal community's failure to do this for so long may be part of the reason for so much congestion in the civil justice system.Law students cannot afford to ignore developments in ADR as many

22、of these processes become institutionalized within the judicial system in court-annexed programs. They must understand ADR processes and develop the skills that are necessary to use them both as an advocate and as a ne

23、utral. It is important to learn to identify the factors that make a particular method the process of choice. If for example, there is a need to preserve an on-going relationship between the parties, litigation might no

24、t be appropriate because many relationships are terminated in the litigation process. Instead, the mediation process should be considered because it is known to work well where parties have an on-going or prior relatio

25、nship. On the other hand, if a legal precedent is desirable, litigation may be a more appropriate dispute resolution process.A useful way to enhance your ADR process skills is to keep a conflict journal. Make entries on

26、 a regular basis about disputes or conflicts you experience and then critically reflect on how you responded. How do you typically resolve conflicts? Through confrontation? Avoidance? Problem-solving? Would other metho

27、ds be more appropriate? This process of critical self-reflection is what good lawyering is all about. Learn from your experiences. The study and practice of ADR is an on-going, active process and will continue to devel