Alternate Dispute Resolution Broadens Horizons and Spawns Creativity

By Maddalena R. Zefferino, M.A.

Companies, law firms, and other business entities are constantly developing new methods in maximizing growth and efficiency within their organization. Business consultants are paid hundreds of thousands of dollars simply to assist in staff restructuring. Traditionally, law firms do not undergo such intense revamping granted legal occupational roles seem to be clearly defined. However, with the constant desire for improvement, it might be beneficial to re-examine how legal assistant or paralegal roles can be expanded particularly with regard to Alternate Dispute Resolution (ADR), specifically, mediation. Litigation is often a costly and time consuming avenue and at times mediation may produce the best option for all parties, especially if future relationships among parties are required. In fact, in North America the initial stage of filing a complaint to arbitration takes on average 16.7 months. [1] For these reasons, alternative methods that can provide more effective, quick, and less costly results. Actually, several organizations handle approximately 10,000 cases annually, worldwide. [2] In 1962, 11 percent of civil cases were litigated, but that has now dropped to 2 percent, a substantial decrease. [3] As mediation sky rockets, the popularity only forces law firms to evaluate how non-attorney employees can serve as integral vehicles of support in ADR.

Defining ADR

Prior to investigating non-attorney roles in the mediation process, it is important to define alternate methods in achieving resolutions. ADR is generally defined as any means of handling disputes outside the courtroom. This includes arbitration, mediation, neutral evaluation, and conciliation. Mediation is a “voluntary process in which parties involved in a dispute work together with a neutral facilitator, the mediator, who helps achieve settlement.” [4] Mediation does not decide the case at hand, but rather is an option to parties who file an arbitration. ADR is growing to be an intricate topic, and it has emerged as both an institution and an industry. In fact, it is an institution that encompasses rules, regulations, professional organizations, and practitioners. It even enjoys official acknowledgement from major institutions such as labor unions, large corporations, and courts.

Non-Attorney Roles in ADR

So how could paralegals fit within this field? Quite nicely, actually. A traditional paralegal’s duties reflect what would be asked of such personnel in the ADR process. The Paralegal Section of the Michigan State Bar eloquently outlines such duties, which include, conducting background research on arbitrators, mediators, judges; assisting in the preparation of agreements or contracts, particularly language pertaining to the governance of ADR proceedings; researching federal and state law governing consumer dispute resolution; performing neutral case administration of disputes wherein one acts as a neutral third-party administrator of mediation or arbitration; drafting demands for arbitration and drafting motions. [5] This list is by no means exhaustive. Paralegals often have been known to accompany clients to administrative hearings or other forums of a nonjudicial nature. For example, some government agencies that provide services directly to citizens must permit parties to be represented by people other than attorneys.

Moreover, litigation paralegals are essential because they often support litigators whose cases, in one stage or another, involve some form of ADR. Litigation and ADR run on parallel tracks as the case progresses. At any phase of the process, the parties may be preparing for trial, mediation, or negotiating a resolution to the matter all simultaneously. In the realm of litigation, paralegals frequently communicate with clients and contact support staff from the other side. Obtaining such accessibility is extremely helpful because the assistant could provide both objective and subjective information about the case, while providing feedback pertaining to the client’s needs to the attorney in charge. In addition, paralegals may research information regarding previous jury awards in similar cases, which will prove crucial in assessing the needs of the case and what outcome the opponent would deem acceptable.

Furthermore, in formal negotiation or mediation, attorneys employ the use of settlement brochures that aim to frame the strengths of their client’s case and sets forth a realistic rationale for what the client wants. Typically, such brochures are prepared by the paralegal, “who are relied upon by busy attorneys to distill complex information and package the client’s case in a creative and persuasive manner.” [6] This non-attorney help will influence how a case is presented and later on, resolved. Paralegals can also be of great assistance by drafting and collecting client information for the position papers required by mediators prior to mediation.

Professional Responsibility and ADR

Clearly, paralegals can provide substantial support in ADR. Yet, with such responsibility it is important to note that there are ethics issues that paralegals must be cognizant of. Mediation is considered a nonjudicial form of litigating, and thus, it does not require the practice of law. [7] The question as to whether mediation is a practice of law has ignited debate, so it is important to consult certain state laws for clarity and restrictions. It generally is agreed among some ethics committees that mediation is a “law-related service.” Nonlawyers may not provide legal advice or clearly practice law. In understanding this issue more thoroughly, it is best to review the American Bar Association’s Model Rule 5.3, Responsibilities Regarding Non-Lawyer Assistants and its amendments.” [8] These rules try to outline the boundaries for these groups. If mediation was only unique to lawyers, other integral individuals such as psychologists or social workers would not be able to participate in mediations. Such skill sets ultimately prove to be useful in mediations.

Focusing specifically on legal assistants,

Legal work that may be delegated consists of any task that is performed by the lawyer so long as it is not prohibited by the law: provided the lawyer maintains the responsibility for the work product, a lawyer may delegate to the legal assistant any task normally performed by a lawyer except those tasks proscribed to one not licensed as a lawyer by statute, court rule, administrative rule, regulation or other authority. [9]

Hence, arguing a case before a judge or magistrate is not possible, but they can help represent an ADR party, as described with government agency matters. Therefore, ADR is aligned as one of the areas delegated to nonlawyers.

Any effective paralegal would also abide by the conduct codes of professionals promulgated in each State by the organization that possesses jurisdiction over such matters. These codes are modeled by the ABA paradigms that exist. Some of the most revered codes in this context are derived by the National Association of Legal Assistants (NALA), which has developed the Legal Assistants Code of Ethics and Professional Responsibility. Another organization, the National Federation of Paralegal Association (NFPA) has developed a similar code, Model Code of Ethics and Professional Responsibility. The codes admonish staff to properly represent clients, be honest, avoid conflicts of interest, and maintain confidentiality. Most importantly, these codes collectively stress the unauthorized practice of law for non-attorneys. Prior to commencing mediation, such rules, depending on the context, should be thoroughly reviewed. Other resources to consult before delving into mediation, is the American Bar Association’s Section on Alternative Dispute Resolution and the Association for Conflict Resolution’s website. These organizations provide helpful links. [10]

In conjunction with review of codes, it is imperative to have staff receive specific training. While litigation paralegals have an advantage in ADR because of experience, they should still work to refine and enhance their skills. Several legal studies programs have now modified their curricula to include ADR segments on negotiation, mediation, and arbitration. Speakers from organizations like the Institute for Advance Dispute Resolution (IADR) are visiting universities to help build top-notch mediators. There are also several online programs to address such training. The program website and the various professional association websites are also resourceful tools in learning more about acquiring training.

ADR Goes Global

Communication and negotiation skills will become invaluable resources and may even lead to such ardent interest that the paralegal may consider pursuing the profession full time and outside the law firm setting. Paralegals with international relations backgrounds may consider expanding their skills and turn to international dispute resolution, which is in high demand, according to the London-based Centre for Effective Dispute Resolution (CEDR). This nonprofit organization has linked up with other countries such as the Netherlands, France, Italy, America, and is dealing with requests from Japan, Russia, Thailand, and Saudi Arabia. Clearly, ADR can lead to more possibilities, which can transcend the law firm setting and reach far into the global arena. However, with international clients, firms can also position paralegals to assist in cross-border disputes.

Law Firm Reaction

Discussions engendered so far about paralegal training and involvement will leave clients content to discover that their firm is embarking on a new and creative approach to driving costs down. This will demonstrate that the firm is keeping in mind the budgetary parameters of their client without sacrificing excellent work product or ethical rules. Law firms should begin to attain the necessary elements to possess “optimized utilization of legal assistants,” which includes, “Creativity of the attorney-legal assistant team in analysis for your litigation practice goals, a recrafting of your practice to better serve your clients, and a high level of confidence in the experience, education and training of the individual.” [11] Such increased delegation will permit attorneys to accomplish goals that can increase client network base and range of services. It is necessary for attorneys to understand that their work does not only involve the eloquent crafting of strong legal arguments but also includes utilizing their staff effectively to help better maintain the interests of their clients.