Dispute Resolution and Counsel: Changing Perceptions, Changing Responsibilities

By Greenbaum, Robert S. | Dispute Resolution Journal, May-July 2000 | Go to article overview

Dispute Resolution and Counsel: Changing Perceptions, Changing Responsibilities


Greenbaum, Robert S., Dispute Resolution Journal


DISPUTE RESOLUTION AND COUNSEL

CHANGING PERCEPTIONS, CHANGING RESPONSIBILITIES

This article addresses itself to transactional lawyers who represent clients embarking on the negotiation of contracts for new ventures or their implementation. The subject of alternative dispute resolution (ADR) has largely been avoided in such contracts apart from those form agreements created and distributed under sponsorship of the American Institute of Architects (AIA), which in its 1997 edition of Standard Form of Agreement between Owner & Architect (AIA Form B141) and General Conditions of the Contract for Construction (AIA Form A201) provided for mediation as a condition precedent to arbitration.

The use of ADR has been avoided in the custom contract drafting process because parties and their counsel negotiating a new relationship are reluctant to introduce potentially controversial or disruptive issues that would change the flow of a harmonious agreement by the jarring concept of break-up. However, the lawyer negotiating and preparing a contract has the first and most significant opportunity for objectively considering with a client the choices available to resolve possible disputes, including the option to litigate.

My observations, over the past 10 years, spring from varied experiences. I write, first, as a transactional real estate lawyer representing clients embarking upon myriad real estate ventures, as a certified mediator in federal court, as arbitrator and mediator selected from neutral panels of the American Arbitration Association (AAA), and as a neutral panelist in the New Jersey Statewide Roster of Neutrals, published by the New Jersey Superior Court.

Lawyers, by tradition and classic law school curriculum, have long considered dispute resolution by means outside of the state and federal courts to be a thing apart-a secondary method to litigation in the search and effort to resolve disputes. The initial message, then, is to urge upon the bar in general, and upon transactional lawyers in particular, the understanding and belief that all techniques for dispute resolution are truly alternative methods to one another. Each method should be considered in parity. A judgment as to the direction toward which dispute resolution is to be sought, should ideally be made ad hoc with due regard to each vehicle and technique for its strengths and weaknesses in the interest of the client in the given situation.

A clarification of the terms "dispute resolution" and "alternative dispute resolution" is necessary. The former is the larger concept, for it includes all techniques and avenues of resolving disputes. The latter, "alternative dispute resolution," is an unfortunate term, for it is less than precise in meaning and it connotes something less legitimate in stature than traditional litigation. The effect has been to vest in only a single technique, litigation, an aura of suitability, conferring upon litigation an unstated presumption of superiority over other dispute resolution techniques.

As a mediator, I am accustomed to providing reality checks to disputants. It is important that a reality check be established here to plant and nurture the understanding, now born and thriving, that the subject of dispute resolution and its techniques includes a vast array of arrangements to help disputants solve their own problems or to impose solutions upon disputants by impartial third parties, be they courts or neutral arbitrators.

The term "alternative dispute resolution," and the acronym ADR, for the reasons stated above, are not helpful since they distort the process of choice.

Therefore those terms will be herein retired with honors. The concept of parity among the choices for dispute resolution must exist in our evaluation of all techniques. As we proceed, the term "dispute resolution" will be used to describe all methods available to reach an optimum result. Each technique must be judged as a legitimate technique in and of itself, and evaluated in comparison with others available as to its appropriateness in a given context. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Dispute Resolution and Counsel: Changing Perceptions, Changing Responsibilities
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.