ADR: The Smart Choice During the Pandemic

By John Miles, CEO

Litigation is personal. Whether you are the plaintiff or the defendant, litigation evokes strong emotions. Anyone who says lawsuits are only about money has never suffered due to another’s negligence or had to face the risk losing a business they’ve spent their life building. Therefore, it’s completely understandable that parties may initially demand their attorneys litigate aggressively. If we are honest, there is often a financial incentive for attorneys to avoid ADR. Both reasons explain why attorneys may avoid ADR – especially at the early stages of litigation.

 

To be clear, ADR’s role is not to paint attorneys as villains – they are ethically bound to vigorously represent their clients interests and attorneys have every right to make money from their legal practices. 

 

But now more than ever, attorneys can best represent their clients and build profitable practices by utilizing ADR. Why? Because for those whose practice is solely devoted to litigation, ADR offers the opportunity to provide what clients truly desire and ensure referrals.  

 

Litigation evokes emotion and the initial instinct of any litigant is to punish their opponent. Over the years, attorneys have become expert in allowing clients to get their pound of flesh. Indeed, many attorneys have built lucrative practices by promising not to compromise and to represent their clients through trial. However, this approach assumes what clients most want is a fight rather than resolution. 

 

I have learned that emotion fades over time and gives way to a desire to return to normalcy. This is especially true in commercial disputes. Successful business owners and CEO’s are competitive by nature. They take pride in their companies and take exception to being sued. What they love most, what motivates them, is building their companies. They appreciate the need for attorneys and they want attorneys who will aggressively defend them and their companies, however, I’ve yet to meet the business person who says they would rather pay attorneys than make money. For businesspeople lawsuits are inevitable and an unpleasant part of doing business. They need to be resolved as quickly and efficiently as possible.

 

What litigants – particularly commercial litigants – want most is closure and the  attorneys that provide closure in the most appealing and efficient manner will be the ones that succeed in the future.    

 

ADR has been around for a while now and it is growing in popularity. However, the current pandemic has been a game changer.

 

COVID-19 and the resulting shut down of courts have made it impossible to get a case to trial. Something that won’t change for months if not years. Attorneys who continue to promise ligation through trial are making promises they can’t keep and will end up with unhappy clients. For now and the foreseeable future, ADR is the only avenue available to resolve cases and satisfy client need.

 

Jury trials won’t be conducted anytime soon. Meanwhile, claims — particularly contract and employment claims will continue to mount. Attorneys who embrace ADR will have more satisfied clients and gain a significant competitive advantage among peers. They will be poised to not only survive the pandemic but to thrive.

 

 

ABOUT THE AUTHOR

John Miles is the CEO of Miles Mediation & Arbitration. In addition to his executive duties, he mediates high-value, complex matters, on request at a per diem rate. He oversees neutral training and development at Miles.