Why Take Dispute Resolution Classes?
Due to the increasing expense and delay involved in taking a case through full discovery (particularly with the advent of electronic discovery) and trial, dispute resolution processes such as negotiation, mediation and arbitration are increasingly being used to resolve legal disputes. In fact, many litigators in their early years of practice are more likely to represent a client at a mediation or arbitration than a trial. Moreover, even attorneys not involved in transactional negotiations will very likely engage in settlement negotiations.
A firm understanding of advocacy in these processes is now essential for attorneys in any practice area, and is expected by sophisticated clients. For example, a recent publication listed the following as some of the questions that clients should ask before retaining counsel to resolve a dispute:
- Do you have experience helping clients consider the appropriateness of options for early resolution of disputes? What options do you discuss?
- What is your experience with and attitude toward negotiated resolution of disputes? With mediated negotiation?
- Have you had formal training in negotiation or mediation theory and practice?
- How does your arbitration [or mediation] advocacy differ from your advocacy in litigation?
- What techniques have you found to be most effective in promoting efficiency and economy in commercial arbitration?
- What professional service models do you employ other than hourly fees? Are you willing to explore incentives for early resolution?1
As these questions make clear, attorneys now need to understand the various options for resolving a dispute and must be able not only to explain the advantages and risks of each process, but be able to advocate effectively for a client regardless of the dispute resolution mechanism selected. This means having a range of advocacy skills -- from knowing how to get an exhibit admitted into evidence at a trial to understanding how to deal with an opposing counsel engaging in positional bargaining at a mediation. At Loyola, our mission is to graduate well-prepared advocates who are able to assist their clients in achieving their goals in any dispute resolution setting.
1 Thomas Stipanowich, Curtis van Kann and Deborah Rothman, CCA Protocols for Expeditious, Cost-Effective Commercial Arbitration, (2010), p. 31.