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Cite as: Brannigan, Review of Mark V B Partridge <i>Alternative Dispute Resolution: An Essential Competency for Lawyers</i>

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		[2010] 3 Web JCLI

Mark V. B. Partridge Alternative Dispute Resolution: An Essential Competency for Lawyers

Oxford University Press Inc., New York, 2009
ISBN 978-0-19-537205-2
(245 pages including tables of cases, statutes etc., and index.)

Reviewed by Colm Brannigan

colm@mediate.ca

A former litigation lawyer, Colm practices alternative dispute resolution in commercial and technology matters as the principal of Mediate.ca Dispute Resolution Services in Toronto, Canada. He is a Chartered Mediator (ADR Institute of Canada), a Certified Mediator (International Mediation Institute) and a part-time instructor in law at Humber College Institute of Technology & Advanced Learning.

Copyright © 2010 Colm Brannigan
First published in the Web Journal of Current Legal Issues.

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The subtitle of this book says it all, Alternative Dispute Resolution is definitely an essential competency for lawyers.  This should go without saying however it is clear from the experiences of the last 20 years that many do not agree. Mark Partridge is an internationally renowned lawyer, mediator and arbitrator based in Chicago where his practice focuses on ADR, litigation, and transactions involving trademarks, copyright, and the Internet.

In his introduction the author says:

As the expense and complexity of litigation continue to rise beyond reasonable expectations, as the importance of legal assets such as intellectual property becomes manifest as a major component of corporate value, as business relationships for all sizes of organizations become increasingly global, it becomes increasingly apparent that the traditional methods of resolving disputes by court adjudication are often inadequate. Attorneys of all types need to explore and understand alternative methods of dispute resolution (ADR) if they hope to give their clients effective advice and service.(1)

It is from this perspective that Mr. Partridge sets out to provide assistance to in-house counsel and outside litigators to deal with the perceived gap between negotiation and adjudication.

The book is divided into eight chapters: Chapter 1 Need; Chapter 2 Benefits; Chapter 3 Avoidance; Chapter 4 Options; Chapter 5 Arbitration; Chapter 6 Mediation; Chapter 7 Legal trends: when ADR goes to court; Chapter 8 Strategy and advocacy.

The author views his task as bringing about a new mindset for litigators. In effect, this book challenges the accepted norm that:

The lawyer has a duty to the client to raise fearlessly every issue, advance every argument, and ask every question, however distasteful, which the lawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law.(2)

It is unfortunate that we still need advocacy for a new mindset in regard to processes which are now generally embedded in the current model of litigation in most common law jurisdictions, but one cannot disagree with the author that this need still exists despite the efforts of many over the last ten years.

In the first chapter, the author in asking “Why ADR,” reviews the ever increasing costs of legal services, using the example of the Mattel Inc. and MGA Entertainment case to illustrate his point. In that case there was an award of $100 million in Mattel's favour however the reported amount of legal fees to achieve this more than $93 million.(3)

In intellectual property litigation, Mr. Partridge ‘s forte, costs are even higher than day-to-day commercial litigation and he provides information on the growth of litigation expenses from 2001 – 2007 as reported by the American Intellectual Property Law Association.(4) The costs are staggering. When the amount at stake is over $25 million, the mean inclusive cost for patent litigation is $5.5 million and goes as high as $10 million. It is no wonder that clients are looking for alternatives to the high cost of litigation.

Mr. Partridge also deals with the phenomenon of the “vanishing trial” which ties into the increasing cost of litigation, for as he says “expense apparently increases as experience with trial practice declines”. This makes sense.

In reaction to this, clients have started to look to alternative forms of dispute resolution. Where traditionally clients expected litigators to litigate their case, now they expect them to explore other options. At the very least, lawyers must consider ADR if for no other reason than as Mr. Partridge indicates, “counsel who fail to hear this message are likely to be replaced by those who do”.

After delivering this message and backing it up with empirical data the author moves on to the benefits of ADR. Among the benefits of ADR are privacy, confidentiality, limited discovery, expert neutrals, location of hearing, timing and reduced expense.

The last benefit reduced expense can sometimes be problematic, but can be achieved depending on the case and the approach of the parties towards resolution. The author gives an example of cost savings achieved by ADR compared to litigation. In the example, litigation of a six-day trial case handled by a partner billing at $300 an hour, costs were estimated at $120,300.  Arbitration in the same case would have cost $94,500 while mediation would have been approximately $10,140.(5)

Other well known benefits of ADR include confidentiality, the ability to limit appeals by using arbitration. Relationships, so crucial to the business world can be maintained through the use of mediation, and finally, ADR can provide acceptable results to clients and a better public image for the legal system by improving the image of lawyers as problem solvers.

While there's no dispute that ADR is not right for all cases, it is puzzling that ADR is avoided in many cases where it would clearly help bring about resolution. Some of the reasons that ADR is resisted by both lawyers and counsel include a lack of control of the process, unwanted disclosure, a fear of showing weakness by suggesting ADR, the additional expense of ADR, the time commitment and the uncertainty of outcome.

In some literature it is also suggested that the reason some lawyers have been slow to adopt and implement ADR in litigation practice is the potential loss of fees.(6) As the author states, this attitude is at the very best shortsighted, at the worst unethical. Lawyers have a duty to their clients and considering ADR as a dispute resolution option is one of those duties of a litigation lawyer.

In the fourth chapter the author explores the various options for ADR. One of the often cited benefits of ADR is that it provides a wide range of creative options. ADR processes essentially fall into two categories those such as mediation which result in a voluntary settlement, and those such as arbitration which result in an adjudicated resolution. The most commonly used ADR process is negotiation and a rational approach utilizing objective criteria can result, and often does, in a favourable result. Other options include early neutral evaluation, settlement conferences, mini trials and summary jury trials. However the best-known options are mediation and arbitration.

The author provides advice on making an effective choice among the various alternatives for ADR which is well worth reading. He also gives examples of both case studies and ADR in action in various settings. Finally he concludes the chapter by looking at dispute resolution service providers.

It is in the next chapter of this book, “Arbitration” that it really shines. The author’s obvious expertise in arbitration comes through in his clearly written and complete overview of the process including commentary on what makes for a successful arbitration. If you start reading this chapter without any knowledge of the arbitration process by the end of it you would certainly have enough knowledge to make a decision whether to use arbitration in your case.

Similarly the author's chapter “Mediation”, again demonstrates his expertise. After answering the question why mediation, he goes through the mediation process and mediation styles. He considers the often overlooked but vital topic of selecting the appropriate mediator for your dispute. As a practicing mediator I'm always surprised by the lack of thought and consideration given by many counsel to the selection of their mediator. By default many choose retired judges who may be excellent arbitrators but are not necessarily good mediators.

In mediation one size does not fit all. While mediators do not have the same powers as arbitrators to impose a solution on the parties, it would be naïve to say that mediators do not have power over the process. It is incumbent on counsel to know more about the mediator’s style, experience and education or training. The author outlines some of the key factors to consider in selecting a mediator.(7)

Mr. Partridge also sets out some examples of documents and wording which can be used in mediation. Of particular interest are the documents, “Sample Preparation Outline”(8) and “Outline for Mediation Hearing”.(9) To produce such documents requires a great deal of time and effort, as with traditional litigation, preparation is the key to success.  As a practicing mediator, I am quite concerned that many counsel do not adequately prepare for mediation.

What happens when for one reason or another, the chosen ADR process results in court challenges? The author deals with litigation including arbitration which is the primary type of litigation over ADR in the United States, Canada and United Kingdom. There is far less case law on mediation, although there is recently an increasing amount of judicial intervention concerning the confidentiality of mediation processes. The cases set out in this book are helpful to arbitrators, mediators and counsel.

There is a significant difference between mediation advocacy and courtroom advocacy. This chapter is exceptionally well-written and useful to counsel whether inexperienced or experienced. Not only does the author outline common mistakes which should be avoided by counsel, but he focuses on four specific areas of mediation advocacy. The mistakes to be avoided include expecting to win, failing to prepare, treating the mediator like a judge, lying excessively, killing the messenger (mediator), looking to the mediator for the right number and disrespecting confidentiality.(10) These mistakes can ruin a potentially successful mediation and are certainly signs of ineffective advocacy.

Effective advocacy involves the 4P's: process, position, preparation and presentation.(11) Dealing first with process, this involves an understanding of the overall mediation process. Position involves understanding what your client seeks to achieve in the mediation. Preparation should go without saying but is often lacking even though it is critical for success. Finally presentation style is also important. It is important to approach mediation from a problem-solving perspective. The purpose of mediations of legal disputes is settlement. That is what the client expects and it is achievable in most situations.

The author calls for litigators to adopt a new mindset. He wants them to move from the attitude “winning isn't everything, it's the only thing“which is attributed to Vince Lombardi, to a consideration of what winning means in specific cases.  He uses the well known works, Getting to Yes: Negotiating Agreement Without Giving In by Roger Fisher and William Ury and Steven Covey’s The Seven Habits of Highly Effective People to illustrate what he means. Getting to Yes is well known for its model of “Principled Negotiation” which is based on four simple and distinct principles of: separate the people from the problem; focus on interests, not positions; invent options for mutual gain and insist on objective criteria.  

From The Seven Habits of Highly Successful People, Mr. Partridge focuses on the fourth “habit” which is often attributed to Saint Francis of Assisi“, seek first to understand, then to be understood” as another part of framework for this new mindset. This advocates that lawyers consider the opponent's point of view when seeking to resolve cases.(12)

In his conclusion the author states that,

Litigation need not be abandoned as it can be useful. But what we advocate is adding a new set of tools to the lawyer’s toolkit. We advocate acquiring a new competency. ADR provides an opportunity for lawyers to be better. Dare we aspire to even more? Perhaps even to become peacemakers? At least we can be a key factor in the solution instead of an aggravation of the problem. ADR might be the right tool for that in your next dispute. Nothing is lost by exploring the possibility, and you might help your clients save some skin.(13)

These are wise words coming from someone who sees litigation practice as their “vocation”. It is unfortunate that in 2009 it is still necessary to call for such fundamental changes.  But Mr. Partridge is not alone in calling for change.  

Over the last decades law schools, especially in North America, but also in the United Kingdom and Australia, have added negotiation and other ADR courses to the curriculum.  In her recent work, The New Lawyer: How Settlement Is Transforming The Practice Of Law,(14) Julie Macfarlane, says, “advocacy is at the heart of how lawyers understand their role and it is at the heart of what is different for the new lawyer”.(15) She asks what the purpose of advocacy is and her answer is, “conflict resolution advocacy”.(16) In her model, “conflict resolution advocacy means working with clients to anticipate, raise, strategize, and negotiate over conflict and, if possible, to implement jointly agreed outcomes”.(17) This sounds very much like the model that Mr. Partridge calls for in this book.

Furthermore in his recent book, The End of Lawyers,(18) Richard Susskind, sees ADR as an important part of the reform of the legal system needed for the future.  Although from Mr. Susskind’s perspective, ADR has become a mainstream tool in the U.K., recently, as reported in The Hesketh Mediation Blog, there have been further calls from the judiciary in the United Kingdom to more closely integrate ADR, in particular mediation, into the system of legal education.(19)

In a speech delivered to the Civil Mediation Council on 10th May 2010, and quoted from in the blog-post, Lord Neuberger, Master of the Rolls, said:

… if we are to make mediation second nature, if it is to be litigation’s twin, then we need to embed that culture from the very beginning of a lawyer’s training. Cultures change in a number of ways. They change through training those who are already part of the culture – something which we all have experience of having had to reorient our approach to litigation following the culture change introduced by the Woolf reforms … Importantly though, cultures change through teaching those who have not yet entered it. They change by teaching the new culture rather than the old one.…ADR is as necessary a part of what it means to be a good lawyer as a knowledge of our adversarial system and substantive law.(20)

The Blog’s author, Philip Hesketh perceptively states, “the purpose of this education is not raise mediation above all other forms of dispute resolution but rather to teach lawyers the when, why and how of using it.” (21)

Despite ongoing calls for this new model by law schools and others in the United States, Canada and the United Kingdom, the costs of litigation has spiraled upwards while the overall reputation of lawyers has continued to spiral downwards. By adopting the suggestions contained in this book lawyers can reclaim much of the lost ground.

This is a well-written, well researched book. It is easy to read, and possesses a clarity of purpose, often absent from legal texts. It is designed with the needs of the IP and general litigation practitioner in mind and it clearly meets its goals.

Whether beginner or experienced advocate, this is one of those books that should be part of your legal practice collection on your library shelf.