Many federal cases in the U.S. are settled or scuttled before they reach a courtroom.
According to the Administrative Office of the U.S. Courts, which provides logistical support to the federal judiciary, more than 90 percent of federal criminal defendants plead guilty instead of going to trial. That is partly because of the popularity of plea bargains among federal prosecutors, who often convince defendants to confess guilt in exchange for a lighter prison sentence.
Federal tort cases — lawsuits where someone alleges harm and demands compensation — rarely go to trial. According to the U.S. Department of Justice’s Bureau of Justice Statistics, only 2 percent of federal tort cases that were closed in 2002-2003 were decided by a trial.
Experienced attorneys say many of their clients opt for settlements instead of trials because of the cost, time and the emotional stress involved in a typical court case. And because of the backlog of cases in federal courts, judges in these courts often encourage parties in civil disputes to participate in a pretrial mediation or arbitration, according to the website of the Administrative Office of the U.S. Courts.
Aversion to long and expensive trials has fueled the growth of the field of alternative dispute resolution, or ADR for short, which focuses on how to quickly and cheaply resolve a legal conflict without a trial. One common ADR technique is mediation, a negotiation between two parties led by a neutral intermediary who attempts to help them reach consensus. Another popular ADR method is arbitration, when both parties in a court case agree to allow an impartial party to hear their arguments and issue a binding decision which they cannot appeal.
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U.S. businesses often include mediation and arbitration clauses in contracts with employees and consumers so they can mitigate the risk of a lawsuit, according to experienced attorneys.
Attorneys say ADR is a common way for companies to resolve litigation and thus a crucial component of corporate law.
Aspiring lawyers who hope to eventually get hired at big law firms will need to demonstrate knowledge of ADR. That way, they can become competitive for those prestigious jobs, says Christopher W. Smithmyer, a lawyer and strategic resource development coordinator at Br?v Online Conflict Management, a dispute resolution company. For business lawyers that represent large corporations, mastering ADR techniques is crucial, Smithmyer says.
“It’s an essential skill. It’s not an optional skill,” he says.
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Because few civil lawsuits result in multimillion-dollar settlements, it is sometimes more lucrative for attorneys to focus on ADR proceedings than trials, Smithmyer says.
Experienced attorneys say that ADR techniques are applicable to nearly every area of law. Attorneys who specialize in criminal law, family law, divorce law and education law say that using ADR methods is a requirement of their jobs.
ADR techniques are particularly useful for parties in a court case at risk of having to deal with each other in the future, says Catherine M. Michael, chair of the education law division at Hollingsworth & Zivitz, a family and divorce law firm with offices in multiple U.S. cities.
Michael says ADR is particularly helpful for divorcing parents who need to negotiate child custody issues but who want to maintain a civil relationship for the sake of their children. She says parents of a disabled student who isn’t receiving the special education resources he or she is legally entitled to receive typically would prefer to get that academic support as soon as possible, without waging a years-long legal battle with their child’s school.
Michael adds that many aspiring lawyers prefer to be collaborative as opposed to combative and that ADR is an ideal form of law for that type of person.
“Not only can you often get things resolved faster, you don’t end up with a situation with the court splitting the baby, or the court issuing a ruling that nobody likes… The benefit of mediation is you can figure out something that’s really going to work for everyone, because there may be really creative solutions you can come to that are outside of what the courts are doing,” she says.
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According to experts, law school hopefuls who want to learn dispute resolution techniques during their J.D. program should attend a school with the following benefits.
1. ADR clinics and practicums: Experts say that many law schools have clinics or practicums that either specifically focus on cultivating ADR skills or which focus on an area of law with an abundance of ADR proceedings.
These clinics give students a chance to gain experience helping real clients navigate the ADR process, says Eric J. Trabin, an attorney who specializes in family law and criminal law and who has experience with dispute resolution.
Trabin says that ADR-intensive clinics and practicums are much more beneficial for an aspiring ADR attorney than any theoretical course on negotiation or settlement which teaches students through simulations. He says real clients are far less rational than actors in simulations, so clinics give students a more accurate picture of what dispute resolution proceedings are like.
“The real world shows you that these negotiations almost never go smoothly, largely because you’ve got one side that hates the other side and that makes it a little more complicated,” Trabin says.
2. Faculty with solid ADR experience: Smithmyer says J.D. applicants who are interested in dispute resolution should look up the resumes of the faculty who teach that topic.
“Make sure to look at their bios and see if they are people who have practiced in the field or are just lawyers who have done a few mediations (anything under 750 is a few),” Smithmyer said via email. “See if they are people who have practiced across the spectrum of conflict management techniques.”
3. Lessons on how to decide whether to use ADR techniques or go to trial: Michael says some legal clients concede too much during ADR proceedings even though they have a strong chance of winning a trial. So it’s important for ADR lawyers to provide clients with guidance on what a reasonable settlement would look like, so those clients don’t get scammed.
Kevin Patrick, an Atlanta-based personal injury attorney who has practiced both trial law and dispute resolution, says dispute resolution proceedings have some significant advantages over trials, with an important benefit being speed.
“Dispute resolution is a good way to really advance your client’s interests, because you can offer an early, creative and sometimes less expensive resolution to cases,” Patrick says.
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How to Identify Strong Dispute Resolution Law Programs originally appeared on usnews.com
