Ethics or Money?
Money of Course, ADR Now Threatens The Legal Profession.
Not too long ago ADR was wildly supported by the profession. It was largely touted as a means to save costs, and included in its supporters were even the most costly law firms who assured their clients they were not at fault for the large legal fees; it was the judicial system. Slowly, but steadily, study after study came out demonstrating that ADR did not lower costs, but the notion that ADR was somehow a preferential way to resolve disputes persisted.
Law schools jumped on the bandwagon. They were never that good at teaching you how to practice law, so it is not surprising they would launch into this area without any real clear objective, and no reliable data, that ADR provided the parties with a preferable outcome, or society with a preferable process. ADR however seemed to grow in reputation, and perhaps application, but I have not seen convincing data on that issue.
There seems to be a growing consensus that arbitration as a solution in business disputes between companies is disappearing, although attempts to enforce its application between companies and their employees and retail customers is growing. There also appears to be a growing consensus that arbitration is taking on all the procedural characteristics of a lawsuit—being destroyed as one commentator put it by “lawyers.”
So what is the problem? ADR has allowed, perhaps unintentionally, non lawyers into the dispute resolution process. The judicial process had locked out competition, but ADR opened the door and lawyers did not foresee this result, nor do they appear to like it. So what is their response—raise ethical issues—express concern about the clients. Use this to start imposing costs upon non-lawyer competitors.
At a recent Law School symposium on ADR, one lawyer presenter expressed concern about mediators requiring clients to sign a waiver of liability agreement. He pointed out that lawyers were precluded from doing this with their clients, so why should mediators be immune. The answer of course is obvious; laymen hire lawyers, but lawyers hire mediators. In fact, at least two lawyers hire a mediator and if they can not make a reasonable judgment about the skill and ability of the mediator they are hiring, they should be sued not the mediator.
This is simply the first step in trying to raise the costs of non lawyer competitors or perhaps regulate out the competition.
