Daniel G. Kagan, trial lawyer and partner at Berman & Simmons

Mandatory ADR: One Trial Lawyer’s Response


Mandatory ADR will soon be impossed upon us: Court-imposed ADR is an unstoppable force. While ADR has been a helpful tool in aiding settlement, mandatory ADR shows signs of hindering rather than enhancing settlement prospects; an expensive "trial tax" in the form of windfall payments to mediators. Will this subvert the system of civil justice it is intended to serve?

Court-imposed ADR

As a trial lawyer privileged to serve on the Boards of Governors of both the Association of Trial Lawyers of America (ATLA) and the Maine Trial Lawyers Association (MTLA), I am keenly aware of and interested in the manner in which trial lawyers are perceived by the public and the manner in which we trial lawyers perceive ourselves. On both counts, I am disappointed with the substance of and rationale behind the mandatory ADR that will soon be imposed upon all of us, in the name of expediency and economics.

Like an overloaded freight train, it appears obvious that court-imposed ADR is an unstoppable force. Though I have serious reservations about mandatory ADR and the manner in which it will be imposed, I have no illusions about its inevitability.

In the rush to impose mandatory ADR, its usefulness and rationale have become distorted. Timed and used selectively in certain cases, ADR is often a helpful tool in aiding settlement. Mandatory ADR, however, is another story. In the form in which it is about to be imposed, mandatory ADR can hinder rather than enhance settlement prospects, while imposing an expensive "trial tax" in the form of windfall payments to mediators and added delay. And, as conceived and about to be imposed, mandatory ADR threatens to co-opt and subvert the system of civil justice it is intended to serve. .../...
Mandatory ADR is being billed as a kinder, gentler way to resolve to disputes. It is promoted naively as a panacea, a Shangri-La. Hostile litigants arrive at an ADR session, suddenly see one another in a newly benign light, and readily compromise their positions to the point of settlement. Lawyers impede this magical process, and therefore, courts must impose ADR on litigants in order to compel them to do what lawyers are unwilling to do or recommend on their own.

The regrettable message that mandatory ADR sends is a false and dangerous one, that trial lawyers are a hindrance to, rather than the facilitators of, true civil justice. This is a poorly-veiled variant on the old (wrongly cited) Shakespearean line, "First thing to do is kill all the lawyers." We need forced ADR to get those troublesome trial lawyers out of the way, so that the professionals - i.e. the "conflict resolution facilitators" who benefit from court-imposed mandatory ADR - can look out for our clients' true interests.
Forced ADR v. Trial advocacy
Clearly lost in the lovefest for forced ADR is recognition that without effective trial advocacy, no case can achieve a just and fair settlement.

I believe it was Ronald Reagan who said, "If you want peace, prepare for war." For a trial lawyer, the adage is amended to read, "If you want to settle, prepare for trial." Trial preparation and effective trial advocacy are what settle cases. Cases do not settle because parties suddenly "become reasonable" through the magic of ADR, imposed or otherwise. Cases settle only when skilled trial lawyers marshall the facts into admissible and convincing evidence that is favorable to their client, so that trial becomes unpalatable for the opposing party. ADR, forced or otherwise, does not change this. .../...
None of this is recognized in the rush to impose ADR upon us. ADR has been raised to the status of revered monument on pedestal, while the foundation upon which that pedestal rests is ignored or even denigrated. That foundation is the civil justice system and the role of the trial lawyer within that system.

With all due respect to those of my colleagues who have endorsed or embraced mandatory ADR, I am very disappointed to see that some have lost sight of such fundamental truths.

ADR success as simple as "sitting down across a table and discussing a case in a less adversarial manner"?
I do not at all agree with the message, published in the name of the Maine Trial Lawyers Association on these pages several weeks ago, that going to court means "name-calling" and "negative testimony." I do not agree with the fanciful vision that ADR success is as simple as "sitting down across a table and discussing a case in a less adversarial manner," and that it may be "the best method of resolving our differences." And I certainly reject the notion that trial lawyers need ADR imposed upon us and our clients to "allow more expeditious and inexpensive access to justice." Allowing such assertions to go unchallenged promotes inaccurate and unhelpful stereotypes about trial lawyers and emboldens those who oppose civil justice to go even further.

My message is not anti-ADR. I use both arbitration and mediation regularly in my civil trial practice. .../...
A good result achieved through mediation is almost always preferable to going to trial. But having mediation's timing and expense imposed upon me and my clients is not helpful, because ill-timed and expensive mediation is worse than no mediation at all.

Many of Maine's trial lawyers are rightly concerned that ordinary citizens are losing their access to civil justice. Court-imposed ADR is about to join other imposed barriers, such as medical malpractice screening panels and jury trial taxes, as the door to the courtroom is closed off to our clients, brick by brick. Most disturbing to me, it is happening in part because we trial lawyers are allowing ourselves to be portrayed as barriers to, rather than champions of, civil justice.

I hope we can do better.


Practice Areas:

Berman & Simmons has the experience, expertise, and resources to win your case

Berman & Simmons is the leading personal injury and medical malpractice law firm in Maine. For more than 100 years, our trial attorneys have represented those who have been injured or harmed by the actions of others. These personal injury cases range from car and truck accidents to the most complex litigation involving defective products and malpractice by healthcare providers. We are known as the firm that will stand up and fight for injured Mainers in disputes against big corporations and powerful interests.