What Is the Outlook for the Field of ADR and Mediation?

Q: What is the outlook for the field of ADR and mediation?

A: In the long-term, the outlook for this field appears excellent. Mediation and other alternative forms of dispute resolution are gaining wider acceptance, as one would expect because of the resulting cost efficiencies to parties and to society, and their value in relieving court dockets. In many jurisdictions, ADR processes are mandated by state and local laws and regulations, or are regularly ordered by judges as a matter of course. However, the rate of progress in incorporating ADR into standard legal process has been much slower than had been predicted years ago.

As a practical matter, many lawyers and others who wish to practice ADR are finding it difficult to develop a stable business practice in this area, because in many jurisdictions the supply of eager practitioners is far greater than the client demand for this type of service. One complication is that in the area of family (divorce) mediation, for example, social workers and other non-legal professionals have joined in the competition for mediation clients. In the area of higher stakes ADR matters , retired judges and other senior professionals in law and related fields have presented themselves as mediators and arbitrators, seizing a significant share of available work.

As a result, many lawyers who wish to practice ADR have discovered that they must develop another, more reliable business base, and develop their ADR practice gradually on the side. Though some ADR practitioners have become highly successful, establishing a name for themselves (for example, in certain "niche" practice areas, such as environmental dispute resolution), other practitioners have become discouraged and have reverted to more traditional areas of practice.

The parties to disputes have also begun to push back against the trend toward increased use of ADR processes. Where conflicts are deep the parties may be unwilling to negotiate, or they may have concerns about the waiver of their right to object to hearsay and other evidence that would be inadmissible in a court proceeding.

On the other hand, ADR can be very attractive to those who find the contentious and adversarial process of litigation frustrating. Helping to develop resolutions that are acceptable to all parties can be deeply satisfying. ADR procedures and rules are also much more relaxed than comparable court processes and a results-motivated attorney that chafes under the complicated rules of procedure and evidence may find the streamlined informality of ADR proceedings a relief. Some attorneys love the negotiation aspect of the legal profession. ADR procedures permit and encourage the parties to seek a resolution in a context where the parties have more freedom to discuss their positions and more latitude to craft an outcome carefully calibrated to meet everyone's needs.

As in developing any area of business, qualities of persistence, competence, and sound business judgment are essential ingredients for success. If you feel a strong "calling" to work in the area of ADR, your skills and personality are well suited to it, and you are prepared to commit to a program of business development over a long time period, you may reasonably decide to pursue it.