For this class, substantive means that your replies have substance, that it helps further the discussion of course content and move the discussion forward. Substantive posts will often include contributions of additional ideas and sources, insights or questions about classmates’ comments, connections to the course readings, ways of applying the lessons from the course, etc. Short comments, such as “Good idea” or “I agree,” do not constitute substantive posts on their own. Neither do comments that are unrelated to the topics at hand (for example, “I saw that movie too!”) If you say you agree about something, please explain why you agree, and add an additional insight or question.
1. I think that having representation from an attorney would be a good idea regardless of using traditional legal processes or if using ADR. The American Bar Association said that attorney’s are able to act differently in the many different types of ADR. Depending on the ADR the attorney may act differently to meet the needs of the client. I think it helps the process due to having someone to keep the ADR going in the right direction. It can help to not have people try to argue and settle their own disputes with involving their own emotions and thoughts without a mutual party to help steer it to an end. I do not think this would make it any less efficient than it is. Nolan-Haley also tells how that if the ADR is not able to result in a compromise and it has to go to court the attorney will be able to explain to the court how binding or legal the ADR process or terms are (2001).
2. Emotions in ADR might be harder to overcome. With not having a system fully in place to control the flow and mediate the questions that can be asked might have a greater impact on ADR. In a traditional court trial there are many rules that are followed to reach the outcome. Nolan-Haley also describes how ethics will come into play during ADR and that there has to be a rule set that must be followed in ADR (2001). When there is a set of rules and ethics in place it may be able to help avoid the problems that emotions bring up in both processes.
Jacqueline M. Nolan-Haley* (April, 2001). SYMPOSIUM:ADR AND THE PROFESSIONAL RESPONSIBILITY OF LAWYERS INTRODUCTION: LAWYERS’ ETHICS IN ADR. Fordham Urban Law Journal, 28, 891. https://advance-lexis-com.ezproxy1.apus.edu/api/document?collection=analytical-materials&id=urn:contentItem:436N-CJH0-00CV-P0S3-00000-00&context=1516831.
Attorney representation is not typically required in ADR proceedings, but it is often recommended so that each party’s interests are adequately defended. Yet, some of the key advantages to ADR over traditional litigation are simplicity and efficiency. Do you think that attorney representation in ADR helps or hurts? Why or why not?
I believe it is dependent upon what the case is. If it is something serious or very complex than I believe that an attorney could be extremely helpful in representing an individual or mediating both parties. If the dispute is something that is fairly common than I don’t believe there is a need for an attorney. Depending on who you hire, they could potentially make the ADR more complex. Additionally, I believe that hiring an attorney for an ADR instead of going through the litigation process is eliminating the purpose of going through the ADR process which is to save time, money, and reduce formality. However, if the case is more serious than the support of an attorney could be very helpful in order to protect your legal rights and give you the best possible outcome.
One of the challenges discussed in this week’s lesson is that of emotion, pride, and ego impeding the ADR process. These factors are obviously present whether disputants are pursuing ADR or traditional litigation. Do you think they are more or less problematic in ADR? Do you think they are harder or easier to overcome in ADR? Explain your answers.
I believe that emotions, pride, and ego could both aid in the ADR and also become problematic. If the mediator or arbitrator can recognize the emotions from both parties and use it to benefit the conversation then I believe it could help reach a resolution quicker. Showing genuine concern and giving time for both parties to let out their emotions and feelings can help foster trust in the resolution process. However, if emotions get too heated and both parties cannot control their feelings than this is where it could become a problem. I believe this is where the facilitator must take control of the situation and do their best to calm both parties down to create a balanced emotional environment. I believe that this is much harder to overcome in an ADR process rather than a formal litigation. In a less formal process, such as a mediation, the party might think that the more emotional they get, the better chance they have at getting their way. So their method might be to show as much emotion as possible in an attempt to show the mediator their frustration and concern. Each party going into a resolution knows that they can get away with showing their emotion, especially more than they could in a litigation process. As a mediator or arbitrator being able to overcome both parties emotions from going rampant can be very difficult. Ultimately, I believe it is the facilitators job to control the emotional environment and do their best not to show any bias or lean a specific way. For more information on A Sensible Reply visit this: https://www.dictionary.com/browse/reply
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