Originally from Dispute Resolution Journal

As in any problem-solving endeavor, ADR requires a close scrutiny of the situation at hand, specifically the conflict and the disputants. In the following article, Lee Rosengard writes that an ADR practitioner’s careful investigation of the inner workings of his or her client’s organization is particularly crucial in a process such as mediation. Many times, a creative solution to a protracted conflict lies in the small details and nuances that may be easily overlooked by counsel who are focused solely on winning. Rosengard presents two scenarios showing the advantages of digging through every available resource in order to understand the client and using such information to fashion a solution that is satisfying to both parties.

Litigators are rarely forced to give careful consideration to the question of who their client is or what its interests are. In litigation, communication paths are typically linear and hierarchical: instructions come from above—from general counsel, or a designee, where the client has such an office, or from a principal or senior manager, where there is no inside legal function.

Litigation objectives are usually well-defined by the client: fight to verdict, pay (or accept) no more (or less) than a stated sum, create a precedent, show all others that you do not bend to the will of your opponent.

In settlements following protracted litigation, authority likewise usually comes from a single source, again inside counsel or a principal. True, inside counsel may call upon the litigator to help educate management about the soundness of settling on the recommended terms. But, for the most part, by the time litigation turns to talk of settlement, the litigator has come to understand the varying internal interests of the client’s business units and the client’s policies. That familiarity makes the litigator more able to fashion an acceptable resolution and more effective in advocating the proposed settlement.