Law Practice Essentials

Lawyers have an ethical obligation to advise clients on appropriate courses of action for their matter, including ADR options (Code of Conduct, Rule 3.1). In some instances, such as in family matters, lawyers are also legally obligated to, when appropriate, discuss dispute resolution process options to resolve matters that would otherwise be determined by the court (Divorce Act (Canada), section 7.7 and Family Law Act (Alberta), section 5). To fulfil these obligations, lawyers must be knowledgeable in the options available to a client to resolve their dispute and the considerations involved. These obligations do not mean that you must advocate for the use of ADR in all matters, but rather you must provide the appropriate information and advice so that the client can make an informed decision about how they would like to attempt to resolve their dispute.

While every matter is unique, and there are no guarantees with any process, the following are some of the common perceived benefits of ADR:

• Resolution may be quicker since the participants have more control over the flow of work, timing of resolution and decision-making process.
• Resolution may be more cost effective.
• There is increased privacy for the clients since processes occur in a private setting.
• Some processes are conducted in a more informal setting, which may be more convenient and comfortable for the clients.
• Some processes can help clients improve their communication and ability to amicably resolve future smaller disputes, which is particularly helpful for those that need to have ongoing interaction with each other.
• Both the process and resolution may be perceived as more effective or fair, particularly if they are tailored to the clients’ specific needs, interests and values.

No process is perfect, and the following are some of the common perceived drawbacks of ADR:

• If unsuccessful, ADR can cause delay.
• It can be ineffective if the clients and/or lawyers do not take the process seriously or do not put in the work required.
• There can be conflict escalation if there is a power imbalance between the parties that cannot be neutralized.

A final important consideration is the amount of control the parties want to have over the outcome of their dispute. Some ADR processes provide the parties with control over what the outcome looks like while other processes have a third-party decision maker. It is important to ensure clients consider whether having control over the outcome is something they want to have, particularly when there is a power imbalance between the parties or family violence.