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Deputy Commissioner Deborah Wood Blevins manages the Alternative Dispute Resolution (ADR)
Department of the Virginia Workers' Compensation Commission. She is Chair of the Joint ADR
Committee of the Virginia State Bar/e Virginia Bar Association and co-chair of the Dispute Resolution
Committee of the International Association of Industrial Accident Boards & Commissions.
future for her children, emotionally and
financially. at is her interest, which may
or may not involve divorce and, if so,
the tone and terms of the proceedings.
STRATEGIC PLANNING/
TREATMENT
After identifying the client's interest,
and concurrently diagnosing the prob-
lem, the next step is to identify reasonable
avenues of resolution. is is where the
concepts of triage and prioritization are
critical. In exploring strategies, lawyers
can use the mediation technique of
reality testing to help clients make a
well-informed judgment about their
priorities, resolution options, and best
use of funds and resources.
Reality testing is the process of com-
paring one's perspective to objective
criteria. Asking open-ended questions of
clients enables them to examine reality
for themselves. For example, an attorney
might ask a client:
"What is your litigation budget?"
"How long are you prepared to invest
in resolution of this matter?"
"Is this a case where the legal principle
needs to be established for your ongoing
commercial ventures?"
While a part of reality testing involves
the economic theory of cost-benefit
analysis, other factors may be important
to the client. In Virginia, we are guided by
an ethics rule in this regard. Rule 2.1 of
the Rules of Professional Conduct states:
In representing a client, a lawyer
shall exercise independent pro-
fessional judgment and render
candid advice. In rendering advice,
a lawyer may refer not only to
law but to other considerations
such as moral, economic, social,
and political factors, that may be
relevant to the client's situation.
Once again, the mediation technique
of focusing on the client's interest, in-
stead of position, is critical. In business,
for example, "the basic modus operandi
… is to reach agreement and then act
cooperatively."
4
With this in mind,
mediation may be a preferred prob-
lem-solving technique in commerce,
rather than litigation, regardless of the
cost or benefit of litigation. e value
of ongoing business relationships may
override a short-term gain obtained by
litigation.
DEFINING SUCCESS/CURE
Success is not always measured in
immediate dollars and cents. In the
end, we must know how the client really
defines success. Again, we can use an
ADR technique to help properly frame
and define success.
" BATNA" is a term coined by Roger
Fisher and William Ury in Getting to Yes:
Negotiating Without Giving In. It stands
for Best Alternative To a Negotiated
Agreement. Simply put, it is the best
possible outcome if you cannot resolve
a problem through negotiation. In a
medical malpractice case in Virginia,
the best financially a defendant doctor
might do in litigation absent a negotiated
agreement might be a defense verdict of
zero (plus the attorneys' fees and other
costs to obtain it). e Worst Alternative
To a Negotiated Agreement (WATNA)
for the doctor might be a verdict for the
current cap of $2,250,000 plus defense
attorneys' fees and costs.
5
Defining the
field in BATNA and WATNA financial
terms helps the client define success,
particularly once the other noneconomic
factors are considered, such as damage to
reputation, impact on future insurance
premiums, and emotional factors.
CONCLUSION
Using ADR techniques can help
lawyers perform triage. In the context
of client intake, identification of the
client's interest vs. position helps define
the problem. Reality testing with open-
ended questions enables discussion of
strategies. Use of BATNA/WATNA
defines the parameters of success. By
learning more about and applying tech-
niques used in the alternative dispute
arena, you can focus your attention on
what really matters to your client, and
become less distracted by the flurry of
communications that can clutter your
thought processes. at, in turn, may
alleviate some of those sleepless nights.
Endnotes
1. Triage Definition, Merriam-Webster.com,
https://www.merriam-webster.com/dictionary/
triage (last visited Jan. 31, 2017).
2. Virginia State Bar, "Report: e Study
Committee on the Future of Law Practice"
(Sept. 14, 2016), http://www.vsb.org/docs/
FINAL_Report_of_the_Study_Committee.
pdf .
3. See Kari D. Boyle, "Triage – a Vital Tool to
Increase Access to Justice," Slaw: Canada's
Online Legal Magazine (July 11, 2013),
http://www.slaw.ca/2013/07/11/triage-
a-vital-tool-to-increase-access-to-justice/ ;
Kristen Blankley, "Adding by Subtracting:
How Limited Scope Agreements for Dispute
Resolution Representation Can Increase
Access to Attorney Services," Social Science
Research Network (April 15, 2013), https://
ssrn.com/abstract=2251421 or http://dx.doi.
org/10.2139/ssrn.2251421 .
4. David H. Burt, "Inside Counsel as
Sophisticated Users of the Mediation Process,"
Contemporary Issues in International Arbitration
and Mediation: e Fordham Papers 2010,
418-433 (Arthur W. Rovine, ed., 2010).
5. Virginia Code § 8.01-581.15.