Dispute Settlement Counsel

I had a job interview this week.  It was not my dream job, but it was a paying job, which is enough to cause this third-year law student to pay attention.  The interviewer wanted to discuss my experience with alternative dispute resolution (“ADR”).  I am earning a Certificate of Dispute Resolution in addition to my JD. I also intern with the Massachusetts Collaborative Law Council, so I have some interest with various forms of ADR. 

As I enthusiastically explained my viewpoint on the strengths of mediation and other ADR processes and why I think they are advantageous to clients, he interrupted me with a knowing smile and said condescendingly, “Yes, but I like going to court.”  He then went on to explain the thrill he gets from the entire litigation process…and I zoned out.

Several thoughts spun in my mind.  I wanted to say that it did not matter what he liked, but rather what was best for the client.   This was juxtaposed with me questioning my intentions of why I prefer ADR methods.  In addition, I wondered if litigators viewed ADR proponents as being weaker or avoiding court simply because of dislike or fear.  In the midst of these battling notions, I came to two conclusions: 1) I did not want to work for this attorney, and 2) I did not want to be this kind of attorney.

The latter deduction was the most jarring for me, not because of the substance of it – I knew I was not interested in litigation before I entered law school – but because of the clarity of the warning.  I realized that as I embark on the job search I will feel pressure by my peers, other practitioners and my student loan bills to take a job – any job.  Still, it is important for me to determine what type of attorney I want to be and start charting my path now.

How can I determine what kind of an attorney I want to be?  Experience will contribute toward that choice.  Internships in contrasting areas help a law student better understand the practice of law. Observing trials, depositions and discovery requests as well as mediations or Collaborative Law sessions also demonstrate the advantages and disadvantages of each process.  To really understand the benefits of ADR, an attorney needs to comprehend the shortcomings of the litigation process and the results actually obtained for the client. 

In addition to experience, law school courses in various ADR fields demonstrate the differences between traditional litigation and ADR.  These classes are taught so differently from regular law school courses that students immediately notice the contrasts.  Additionally, students see how the skills obtained in ADR courses are applied in other substantive law areas such as business, family, probate and employment law.  This is not to say that students should not take any courses preparing them for litigation.  On the contrary, a student should develop litigation skills as well, because those skills are an integral part of any ADR process; they are just applied differently.  Lawyers and clients may choose to engage in a non-adversarial ADR process, but lawyers always remain advocates for their clients’ rights as well as their clients’ interests. 

This leads me to an important point – the client’s needs and desires.  I believe the greatest benefit of honing the ADR skills in classes and internships is developing active listening skills.  Learning to actively listen, reframe and ask questions serves an attorney well when meeting with clients.  It is through these meetings that attorneys learn of their clients’ issues and concerns.  Having strong active listening skills, however, enables an attorney to further understand the details of the legal matter as well as what the client’s fears and emotions may be.  This information will help an attorney design the best method to address these issues and concerns, whether it is mediation, Collaborative Law, litigation or some hybrid process.  Knowing all of the options and being able to explain them to clients makes the difference between a being a lawyer and truly focusing on and addressing our clients’ situation, rights and interests.