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Consider ADR, Regardless of Where the Dispute Arises

Posted By Administration, Monday, November 20, 2017

By Joseph W. Milam Jr.,
Judge, 22nd Judicial Circuit

As a judge who sits in a predominately rural circuit, I routinely encounter lawyers who demonstrate patience, civility, and tireless dedication to their clients. These traits make such lawyers naturals for ADR. Despite this, I am concerned that not all lawyers in rural areas are inclined to pursue ADR.

Some lawyers tell me that their clients want, and expect, their day in court. A lawyer has to be responsive to her/his client, but perhaps such a sentiment ought to be probed further to discern what the client is really saying. Is the client interested in a courtroom, or is she/he more interested in having an opportunity to be heard? In either event, ADR cannot be summarily dismissed. ADR sessions can be conducted in a courtroom-type setting. If a client wants an opportunity to vent, many note that ADR actually enhances the ability of stakeholders to have their say.

Although most lawyers acknowledge the efficiency with which disputes can be resolved by ADR, as compared to traditional litigation, I have heard other lawyers express the concern that unless finality is assured, ADR will delay a trial and increase costs. The success of ADR should not be measured solely by whether or not a final disposition is obtained. In the course of ADR, creative lawyers might resolve an insurance coverage issue or a disputed defense, or reach an agreement limiting a trial to liability only (with stipulated damages) or limiting a trial to damages only (with stipulated liability). Such partial resolutions may significantly reduce costs and expedite a trial. They may also reduce or even eliminate appeals. ADR affords stakeholders an opportunity to see and better understand the other side of the dispute. This alone can be productive as far as promoting an agreed disposition.

Virginia’s courts remain willing and able to conduct trials, and adjudicate disputes. Good litigators know how to navigate the judicial system, and to represent their clients in court. They also know that ADR should also be considered as a means of resolving clients’ disputes, regardless whether the dispute arises in the boardroom or the cornfield.

Tags:  ADR  judge  Judge Joseph W. Milam Jr. 

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Comments on this post...

Donita M. King says...
Posted Monday, November 20, 2017
As an ADR Professional and Litigator, it is always very helpful to get judicial insights on this subject.
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Jeanne F. Franklin says...
Posted Friday, December 22, 2017
Thank you, Judge Milam for your comments. I have always enjoyed your wisdom over the last years of committee deliberations. These comments strike me as particularly apt because they manage to capture both a judicial and practicing lawyer's point of view about how ADR can serve the client better even if it might appear counterintuitive at first.

Quality lawyer counselling of the client remains a vital skill and imperative. This committee continues to stress it at different junctures in our educational work because it is not easy but it is so important. I wonder if others have stories or wisdom to add here to the discussion.
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Deborah Blevins says...
Posted Friday, December 22, 2017
The need to be heard is fundamental and ubiquitous -- we all share it. Lawyers, judges, mediators all "hear," but we do it in very different ways. Fitting the process to the person is a critical skill for lawyers.
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