Mediation and Negotiation Now Part of Practice of Law; Law Schools Should Offer Alternative Dispute Resolution

Article excerpt

Alternative dispute resolution should be used more often by more attorneys and become part of the law school curriculum, according to Robert McKay, professor and former dean of the New York University School of Law.

McKay, who also is president of the New York Bar Association, was the keynote speaker during Law Day activities April 5 at the Oklahoma City University School of Law.

Because of the changes in the nature of law practice and the buildup of complex cases, McKay contends law schools should incorporate courses concerning alternative dispute resolution in their curriculum.

"The practice of law has changed. The traditional ways don't always work," McKay said in an interview preceeding his speech.

Students and lawyers should have a better understanding of when the courts are most useful or when some other form may work just as well, be less expensive and be settled with less delay.

In the law school Mckay said three things need to be done. The first is to offer an overview seminar in alternative dispute resolution. The second is to offer special training in mediation, negotiation and arbitration.

The third is to include a section on alternative dispute resolution in all basic courses.

Lawyers are trained in the adversary system, but, McKay said, sometimes become set in the idea there is no other way to settle by adjudication. Every case should not be forced into that mold.

The alternatives that have shown some success are negotiation, mediation, arbitration and summary jury trial.

Arbitration is a proven success, McKay said. The decision of the arbitrator is enforced in court.

Summary jury trials are a variation of the traditional court process. They advocate control of the case by the judge and six-member jury. For example, the judge prescribes all time limits.

McKay said the summary trial is advantageous because it allows the client to learn more about the case and uncovers strengths and weaknesses of both sides.

Alternative dispute resolution is promoted by the National Institute for Dispute Resolution in Washington, D.C. which provides grants for various experiments.

The University of Missouri at Columbia has a dispute resolution center, as does Harvard, MIT and Northeastern University. The American Arbitation Association sponsors seminars.

"Alternative dispute resolution has become fashionable, but it's deeper than fashion," McKay said.

Alternative forms of settlement are most useful in routine cases that do not mirror previous cases, those that do not involve a principle of law or precedent. Moreover, alternative dispute resolution will be most beneficial in cases where transactional costs are larger than the potential award.

"Private parties would just as soon avoid publicity. . .and settle it in confidence, especially when trade secrets are involved or disclosures that may be embarassing," McKay said.

Unless it was a case concerning some public issue or principle of law, Mckay said privacy is justifiable.

But in questions where interpretation is necessary or in emotional issues they should be open to a public forum.

The use of an ombudsperson by government agencies and corporations to act as a liasion between employees and management is a preventive measure and showing up more in the current litigious environment.

The ombudsperson, formally referred to as an ombudsman, is designated to hear employee grievances and make a recommendation as to what should be done to solve the problem.

"Newspapers use this to deal with complaints," McKay said. "It is another device for government agencies and some universities are using it.". . .

- Enrollment of first year students in the 175 law schools accredited by the American Bar Association stabilized in 1985, after three years of steady decline, according to an ABA report. …