Litigation is often time-consuming and always costly, and even a victory at trial may not be the best way to meet a client’s objectives. Increasingly, litigators look past the emotion of going to court and pursue alternative dispute resolution through arbitration or mediation. Doing so successfully, of course, requires understanding the law and the appropriate ADR techniques. But what is often overlooked is that the process of securing agreement to pursue alternative dispute resolution is very similar to the process of successful marketing. A successful marketer develops relationships, builds bridges and wins confidence. Marketing in this sense means learning about a client’s needs, pinpointing how to meet them, and making clients feel valued and understood when they receive such focused attention. Creating such a foundation of trust is essential in ADR and marketing, and the skills for doing so are similar.
Relationship Management
One of the great frustrations for many lawyers is when opposing counsel do not take the time to delve into and understand their client’s case, such that they could engage in meaningful settlement discussions before trial. As a result, the client must often be told that there is no alternative to the time and expense of preparing to go to court. Opposing counsel may think this tactic puts them in a position of dominance to control the proceeding. In reality, of course, they are not, because they didn’t have control of the facts. The result is often a settlement that is reached on the courthouse steps when heading for trial—a settlement negotiated exactly in line with an understanding of the issues at stake, and one that could have been reached much earlier through a more collaborative process.
