Future of ADR
The initial flush of enthusiasm for mediation as a solution to a variety of problems having passed, lawyers have a choice as to whether ADR will be a significant part of their legal business.
There is no doubt that alternatives to litigation will remain significant in a variety of cases and for a range of reasons. It is likely that many lawyers will continue to offer a range of ADR services. It will be the main work of some. At the very least, lawyers will need to give advice on the full range of dispute resolution options including ADR. There are therefore a number of issues that may be considered in the future.One of the main issues has been largely ignored is the model of mediation adopted by the legal profession. In the early stages of reception of ADR methods into the mainstream, lawyers subscribed fully to the facilitative model. The professional bodies followed suit, in their panel codes, without apparently considering that this is an ideological decision with quite serious consequences. In rejecting the evaluative model of mediation, the profession may have missed an opportunity. The potential for authoritative evaluation is one of the main advantages of lawyers being involved as third party neutrals.
If the legal profession were to adopt an evaluative model of mediation, it would be more consistent with their existing orientation to legal work. This would leave the operation of facilitative mediation to those with more conducive disciplinary backgrounds. It is likely that evaluative mediation would be popular with clients looking for quick, cheap and fair dispute resolution. In practice, clients are often confused by the ‘remote’ role of the facilitative mediator.[3353] Adopting a more evaluative model could help mitigate the impact of power imbalances. It would also address criticisms of many clients who find that facilitative mediation frustrates their expectation of an authoritatively certified fair settlement.[3354]
If it were to be adopted, an evaluative mediation model would require some thought.
It has been suggested that lawyers’ role in mediation would be enhanced by giving legal advice to both parties in each other’s presence.[3355] Since their expertise puts lawyer mediators in a good position to secure fair agreements, it is also suggested that they should be ethically obliged to do so, while seeking solutions maximising the benefits to the parties.Even if lawyers continue to engage with ADR on the same terms, that is, under the facilitative model, it is unclear whether and how this will be reflected in education and training and in conduct rules, if at all. As the account of the regulation of ADR shows, the obligations of lawyers as third party neutrals are not recognised in the codes. They are, however, contained in codes published by the Law Society that have no regulatory force.
The responsibilities of lawyer representatives in ADR have never been paid much attention. While the specimen code that originally appeared in the Guide had more general emphasis, the panel codes that replaced it focus on solicitors as mediators rather than as representatives. The codes impose no duty to consider ADR in giving dispute resolution advice, even in relation to the basic standard required by the courts. This is in marked contrast to the regulation of mediation in the US, for example.
Many state bar codes in the US contain rules regarding lawyers’ responsibilities in advising on dispute resolution. These tend to oblige lawyers to identify the objectives or means of representation and advise which dispute resolution methods are most appropriate, given the client’s preferences and the nature of the problem.
In both Texas and Colorado, lawyers are under specific obligations to advise clients regarding the availability and/or advisability of ADR.194 This could be seen as a minimum obligation.195 If ADR is taken seriously, legal representatives should be under a duty to consider explicitly a range of factors in giving dispute resolution advice. Where ADR is considered a possible option, this advice could include the qualifications and status of third party neutrals, the information on which the process will be based and the cost of gathering it.
VII.