REGULARS

LAW PRACTICE

There are two somewhat disparate types of practices under the rubric of ADR. One practice is arbitration, which follows the traditional procedure of evidence presentation and argument before an arbitrator, who is an impartial hearing officer and often authorized to render a binding ruling.

The other is mediation, which also involves an impartial third party - the mediator - who facilitates the disputants to reach their own agreement. While both practices often reduce the time it takes to resolve a dispute, in an arbitration, the parties are told what to do; in a mediation, the parties themselves decide what to do.

The mediator, often referred to as a "neutral," facilitates communication between the parties and clarifies information and relevant legal issues without taking sides. Neither disputant is represented by the mediator; in fact, each party needs to retain her or his own attorney for advice during the mediation and to either draft any settlement agreement or review one prepared by the mediator.

Some mediators allow the attorneys for the parties to be present during the mediation session(s) while other mediators will only facilitate directly with the parties.

Arbitration is effective for disputes that cannot be resolved through mutual agreement, while avoiding the long, drawn-out process of discovery and numerous hearings often foisted upon a court case.

On the other hand, mediation is an alternative to the advocacy/confrontation system. It is viewed by many lawyers as a more humane, people and solution-oriented method for resolving disputes, resulting in a "win-win," rather than the "win-lose" model of a court trial or arbitration. A skilled mediator can assist the parties to effectively develop their own solutions to their conflict through negotiation and compromise.

Unlike the resentment that can be present against a court- or arbitrator-imposed resolution of a dispute, in a successful mediation the parties are empowered and generally feel they have achieved a workable result with which they can live.

Mediators have been used for years in the family law area, and now the use of mediators by the business community is growing as business people become aware of the financial and time savings, often with decreased animus between the parties following a successful mediation.

Interestingly, a mediator need not be an attorney. Many effective practitioners are psychologists, business people, securities brokers, realtors, etc. Viable partnerships have been set up between a lawyer and another individual with expertise in the area in which the lawyer desires to mediate, each performing the functions she or he knows best.

In family mediations, a lawyer may pair with a legal practitioner or psychologist or social worker of the opposite sex, to avoid any appearance of gender favoritism.

One way to test whether you will like mediation is to volunteer with an organization that has a mediation program. Most communities have dispute resolution programs, as do many Better Business Bureaus, local bar associations (for fee disputes), special interest groups (such as the National Association of Securities Dealers or the Board of Realtors), and some non-profit organizations (such as California Lawyers for the Arts).

Some court programs take volunteers. Most volunteer programs will provide a small amount of training so that you are introduced to the basics.

After obtaining volunteer experience, you can then decide whether you like the field well enough to pay for training. Since mediation is quite different from advocacy, training is most often necessary to refine your skills.

In fact, some lawyers do not make good mediators because they can't step back from their advocacy role; as a mediator, it is essential that you remain neutral or you lose your credibility and the trust of the parties, as well as create a conflict of interest for yourself.

For the present, there aren't a lot of practitioners who make their complete living from ADR since the amount of available business is still somewhat limited. There remains resistance among some litigators to promote ADR to their clients since these litigators perceive ADR as a threat to their own livelihood.

In addition, the public still doesn't know about ADR. Until it does and the demand for ADR practitioners increases, many people combine other paying work - such as litigation, transactional work, or even non-law activities - with an arbitration or mediation practice.

If you are already an experienced ADR practitioner looking to increase your business, try to place your name on various panel lists (for example, the American Arbitration Association if you've practiced law for at least 10 years, or the Federal Mediation and Conciliation Service). However, you probably won't make a lot of money from most panels.

Developing an ADR practice is similar to growing a law practice - you have to get out there, beat the bushes, and network, network, network. And be sure to educate everyone you meet about the benefits of ADR.

Sample Resources:

American Bar Association Standing Committee on Dispute Resolution (740 15th St., NW, Washington, D.C. 20005-1009; 202/662-1680; www.abanet.org/dispute/) publishes a Dispute Resolution Directory that sets out programs alphabetically as well as state by state.

CPR Institute for Dispute Resolution (366 Madison Ave., New York, N.Y. 10017; 212/949-6490), an international non-profit organization that encourages the integration of ADR into law practice, has publications and training. Members are general counsel, law firm lawyers, academicians, etc.

Society for Professionals in Dispute Resolution (SPIDR) (1621 Connecticut Ave., NW, Suite 400, Washington, D.C. 20009; 202/265-1927; www.spidr.org/), a prominent national organization, with regional chapters, of mediators from both the public and private sectors, and an ADR clearinghouse that sponsors educational programs.

Hindi Greenberg was a business litigator in San Francisco for 10 years before founding Lawyers in Transition. She may be reached at 415/285-5143. Her book, "The Lawyer's Career Change Handbook," will be in bookstores this month.