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Creative advocacy in voluntary alternative dispute resolution: resolving employment disputes without going to trial can serve your client well.

Article Excerpt
Litigation is great for creating courtroom drama and testing lawyers' analytical and theatrical skills. One of the reasons TV and movies often depict lawyers as heroes is that we are trained to enter the courtroom like skilled duelists, seeking to right the wrongs done to our clients. In employment cases, the idea of the lawyer as champion, advancing not only his or her client's interests but also those of the general public, is particularly appealing.

Despite the importance of winning cases at trial, some cases are best resolved in less confrontational ways, one of which is known as alternative dispute resolution (ADR). ADR can range from informal settlement discussions and voluntary mediations with a neutral third party to mandatory arbitration.

Here, the term focuses on voluntary methods of resolution, since being forced into an arbitral forum is only a change in forum, not a change in the method of resolution. When parties enter voluntarily into a mediation, they can obtain many of the benefits of a formal fact-finding while a more meaningful resolution is crafted.

In employment cases, where plaintiffs often need a speedy and meaningful resolution, ADR can make a lasting difference in your client's life and should be considered early on. Unfortunately, too few lawyers--on both sides of employment disputes--seek truly creative results for their clients. Many defendants and their counsel believe that writing a check is the only way to resolve a dispute in employment cases.

If plaintiff attorneys approach ADR creatively, they may be able to educate defendants to look beyond dollar signs to the parties' real motivations. Doing so can avoid expensive conflict and achieve meaningful resolution.

There is certainly a place for litigating disputes in civil court, with either a judge or a jury as the neutral decision-maker. But in certain circumstances, ADR is the better choice. Why and how should you and your client undertake voluntary efforts to resolve a problem?

The why

A plaintiff's right to a trial by jury--and a lawyer's delight in a potential Perry Mason moment--need to be balanced against the plaintiff's need for a positive, meaningful closure of an unpleasant experience. Early on, plaintiff lawyers need to outline for their clients every alternative to filing suit and proceeding to...

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