WHAT IS THE ATTRACTION OF ADR FOR CLIENTS ?
Amongst other things, "Going to Law" to settle disputes is often :-
- an intimidating experience for the parties
- expensive - especially in respect of legal costs and fees
- time consuming with lengthy meetings between the parties and lawyers and in preparing evidence and discussing strategies'
- long winded and protracted as correspondence flows back and forth between the parties and their lawyers and in waiting for court hearings. It may take two or more years to get to court.
- damaging to business interests. Court hearings result in private business being aired in public, jeopardising public confidence in ones business affairs
- harmful to relationships since the win/lose adversarial aspect of litigation tends to further alienate the parties making it difficult to maintain business relations after the dispute has been brought to a judicial conclusion.
- considered to result in unfair and illogical outcomes which do not reflect commercial realities. Lawyers and judges are perceived by many as being out of touch and as having little empathy for the concerns and the needs of clients and the people who appear before them in court.
By contrast, to varying degrees, ADR processes are likely to be :-
- Less formal and far more consumer friendly than attending court hearings.
- Less expensive than going to law.
- Less demanding on personal time in respect of preparation for the process.
- Much quicker, enabling parties to get on with business sooner.
- Conducted in private, protecting business confidentiality and reputation.
- Less divisive and assists reconciliation between the parties.
- Conducted by individuals with commercial and industrial experience.
THE IMPLICATIONS OF ADR FOR BILLABLE HOURS
If the response to 2, 3 & 4 above is B, C & D the conclusion might be that ADR will adversely affect a lawyer's income stream. ADR certainly has implications for the way that lawyers conduct their business but it not inevitable that income will be adversely affected, since the billable hours involved in advising clients outside the court are much the same for ADR as they are for litigation. The attractions of ADR highlighted by A, E, F & G to the criticisms of litigation at 1, 5, 6 & 7 above have few adverse implications for lawyers but provide powerful reasons for clients to engage in the ADR process. By embracing ADR lawyers can enhance business opportunities and maximise income.
The potential roles of lawyers within ADR processes are many and varied and must be approached on a process by process basis. Most lawyers are likely to engage in a particular process germane to their own specialised area of practice so the learning curve is likely to be less dramatic than might appear at the outset.