Select Page

Alternative Dispute Resolution
Southern Illinois University School of Law
Feltman, Jeffrey D.

· Whenever you or your firm have info. That is potentially damaging to an adverse party and that knowledge was gained as a result of a previous representation of that party OR you or your firm was consulted by the adverse party about representing that party on the matter at issue.
· When agreeing to represent a client whose interest MAY become adverse to a current or past client (e.g. you represent a business and an employee of that business request that you represent him in an action against an entity which arguably could name your business client as a third party defendant).
· When you might be required to appear as a witness in a proceeding in which you represent you client.
· Keep conflicts checking system
· Check the system for possible conflicts prior to interviewing a new client.
o See if the potential client’s name comes up in the system
o If the potential client mentioned the potential client
ADR…negotiate, mediate, and arbitrate
ADR: must have good faith reason to think there is a case…cannot be frivolous….don’t negotiate if you would not file it as litigation.
In any form, lawyer is responsible the same as lawyer
· Must be able to value the strength of case considering
o Causes of action
o Defenses
o Elements of cause of action
o Credibility of witnesses
o Likely range of money awards
o Competition?
Always be prepared in the event that the alt method fails.
· Must be able to value strength of case considering
1. Cause of action(is it viable)
2. Does the D-fense have enough evidence to win
3. Can elements of cause-of-action be proven
4. Credible witnesses??
5. Level of competition
6. How will public perceive: some clients value privacy
7. Range of $ award
Starting point for Cause of action: “jury instructions”

Additional considerations…can mediation come to a resolution that the courts cannot impose? i.e. can both sides be happy or maintain relationships.
1. Can you alternately come to a resolution that has terms that cannot be ordered by a court
2. Can trade things each party values in a way both parties feel better about

3. Can you develop an outcome that lets both parties maintain a beneficial relationship

Negotiation: process in which there is NO third party facilitation the resolution process or imposing a resolution.

· Purposes of negotiation depends on participant’s goals

§ Participants with goal of avoiding litigation and creating own solution will use negotiation
§ Participants with goal of litigation will use negotiation as a tool to contact other side and delay action.
§ Extract additional information
§ Gain timing advantages
§ Extract quasi-admissions and/or concessions and/or
§ Posture to impress or intimidate the other side


· Presenting demands
· Deadlines
· Good guy /bad guy
· Limited authority
· Caucusing
· Walking out
· Concession

Principled Negotiations: out of box thinking that seeks to make “win-win” scenarios

· Separate the people from the pb.
· Focus on interests not positions
· Make variety of options B4 settling on agreement
· Insist that agreement be based on an objective material
· Stress the gains for both parties to settle

Another approach is Mutual gains bargaining… stressing both sides can win, best conducted by negotiator that can FORCE the other side to see that….

· Both sides have interests
· Issues can be viewed as opportunities
· Pie is not finite
· Only sustainable alternatives are beneficial
· Listening to each other is not a sign of weakness but instead builds trust

BATNA: best alternative to a negotiated agreement (not always a monetary amount) (know)
· This is the cause of action should negotiation fail (not reservation point nor walk-away point)
· During negotiations, constantly assess the value of projection agreement
· If value of settlement is less than BATNA you may want to consider ending negotiation (walk away point)

Mediation Is
· Usually a voluntary process (although courts sometimes require the parties engage in the process – those courts do not mandate that the parties resolve their differences through mediation),
· There is a neutral third party (mediator) facilitating the process,
· The mediator may not impose a resolution.
· Preparation of the client and the Attorney for mediation is as important as preparing you witness for a deposition
· Since mediators differ in the style of approach they use, the “typical” mediation has no predictable pattern but certain elements can be expected
What takes place in mediation?
· Parties have chance to discuss their personal view of the problem
· Issues are identifies by the mediator with help of parties
· Detailed specification of the party’s respective interest and objectives will be clarified;
· Respective subjective evaluation of the problems will be restated as objective values;
· Optional resolutions will be solicited, discussed, and analyzed for their application and possibility of success
· Adjustments and refinements to the most workable resolution will be done with an eye toward maximizing the chance for success
If mediation settles a case already in litigation, there are two ways to resolve which must be included in the written agreement
· If based on the mediation the D agrees to an “agreed order” for the court term must be included in the mediation agreement and be approved by a judge ( when necessary)
· If P agrees to dismiss his litigation, the terms of this agreement should be included in the written mediation agreement
Initial Client Interview
· Purposes
1. Determines whether a business relationship will be established between the attorney ant the prospective client?
2. Chance to gain info. About the client and the claim
3. Chance to evaluate client’s version of facts
4. Chance to estab

ng and non-leading questions
3. Correct timing
4. Correct context
5. Using silence
· Finding and telling stories based on the facts of the case
· Painting a picture
· Giving information
1. Complete v incomplete
2. Precise v ambiguous
· Using tone and body language
· Making arguments
1. Logic not rancor
Ethical considerations (ARDC): even if a person is acting as an attorney, they have to use the same ethical consideration that is expected if they are attorneys.
1. Conflicts of interest
2. Confidentiality
3. Candor
§ Acceptable deceptiveness? Probably NOT.
· As surrogate
o To client
o To adverse party or surrogate
· As third party
§ Requirement of bargaining in good faith
· Full disclosure of ADR as part of representation
· Threats as tools (civil and criminal): criminal threats can NEVER be used…however civil threats can be made IN GOOD FAITH
· Civility
· Duties to present offers of settlement
· Duties to communicate with the client.
· Role an attorney can take.
1. Councilor
2. Surrogate
3. Legal advocate

· What formal regulation of conduct applies as between attorneys negotiating for their clients?
§ The same as in any other role….they have the same responsibilities.
What is an attorney acting in a surrogate role?
· Informal negotiations
1. Demand letters
2. Responses to demand letters
3. Telephone calls
· Formal negotiations
1. Verbal
2. Written
· Judicial settlement conferences
· Other arenas where the client (disputant) is personally negotiating (mediations mostly).
Conflicts of interest
· Conflicts when lawyer is a surrogate
1. What are the relationships in a negotiation
§ Party A—–Atty A——Atty B——-Party B
· Conflict is a third party (mediator)
1. Prior representation
§ Disputants
§ Third parties beneficiaries
2. Personal stake in outcome
Candor: truthfulness…in the model rules and comments to the model rules…..rules of professional conduct….case law of torts…aspiration goals
What is the Truth for a lawyer? The authenticity of the information contained in a communication or document
Is there a requirement to concede weaknesses? NO
Misrepresentation: false statement of the facts as one perceives them to be….if it is intentional, it is actionable as an ethical violation.
If a person would have acted differently had they known the truth, it is a material misrepresentation.