Conclusion
ADR offers solutions for dispute resolution that go beyond the traditional litigation and negotiation model. These private solutions provide access to justice in ways that did not previously exist.
This opportunity comes with risks. Techniques developed to empower individuals may be co-opted and distorted to provide cheap and inadequate solutions to problems for which they are not ideally suited.Government policy has offered lawyers a new role in dispute resolution at a time when civil litigation is in decline. Lawyers participating in ADR as neutral third parties, arbitrators, mediators, conciliators, or as representatives in such process, require different skills. The legal profession has adopted a facilitative model of mediation, with potential blurring of the adversarial and co-operative roles. Lawyers, arguably, have not had adequate preparation for this change in roles in terms of either skills or ethics. This is worrying when ADR codes of conduct are unclear, contradictory and provide dubious authority.
Lawyers representing clients in ADR processes require a good understanding of the potential of ADR. Legal education needs to change accordingly. The ethics of the work change also, with far more emphasis on co-operation and facilitation of the client’s goals. It is unclear how far the traditional ethic of lawyers, based as they are on an adversarial tradition, will accommodate or survive this wave of co-operative influence.
194 Arnold (n 87); MJ Breger, ‘Should an Attorney be Required to Advise a Client of ADR Options?’ (2000) 13 Georgetown Journal of Legal Ethics 427.
195 S Widman, ‘ADR and Lawyers Ethics’ (1994) 82(3) Illinois Bar Journal 150.