Originally from Dispute Resolution Journal

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The following article is a call to arms against the threat of the “lawyerization” and “parochialization” of alternative dispute resolution practices. Giving detailed examples, John Cooley shows ADR professionals how to defend themselves against the mounting attack on the ADR “profession” by those who would resist the new paradigm of alternative dispute resolution: that is, new sets of rules that offer “more successful solutions to problems than those achievable by the prevailing rules.”

The very foundations of our fledgling ADR profession are under attack. Two states—Virginia and North Carolina—have already implemented guidelines defining certain mediator activities to be the practice of law.1 Bar Associations across the country are uniting in an effort to expand the definition of “the practice of law” to incorporate the broadest scope of human activity possible. The American Bar Association’s Ethics 2000 Commission is currently proposing and seeking comments on new rules that directly address the role of the lawyer as a neutral—as being something distinct and different from the role of the non-lawyer neutral.2 Paralleling these thrusts is the American Bar Association’s internal debate on multidisciplinary practice of law which ultimately could have a very destructive impact on the multidisciplinary practice of alternative dispute resolution.3 What is happening can best be described as a concerted effort to, in effect, neutralize the neutrals. Although both lawyers and non-lawyers may be casualties of these efforts, non-lawyer neutrals are likely to suffer the most. Unless we act quickly and decisively, we could be picking up the pieces of our ADR profession in a few short years and, in a dazed condition, wondering how it all happened.

A helpful approach to analyzing the current situation and its impact on the future of the ADR profession would be to ask the questions a child would ask. Applying this Socratic approach, we would be inclined to frame four questions:

1. What is the problem?
2. How do we optimally reframe the problem?
3. What are the possible solutions to the reframed problem?
4. What is the optimal solution to the reframed problem?