However, negotiation is the oldest and the original ADR method. Modern changes in practice are really changes in the use and application of negotiation enhancement techniques and other ADR methods, such as mediation, not a replacement of negotiation and all other ADR methods and techniques with mediation. No one would consider the failure to use binding arbitration an act of malpractice and entering into it at the wrong time or with the wrong case is at best extremely foolish. However, the overall use of negotiation techniques and the appropriate time and place for the use of them is an appropriate ethical consideration as is the possibility of resolving an issue by mediation. The savings to the client consist not only of financial, but of emotional and social resources.
Attorneys owe their clients a duty to consider such things in the conduct of their cases.
In addition to the ethical considerations, there are several very practical elements in mediation that improve client satisfaction and client relations. These elements are worth considering. A client goes to a lawyer to find someone who knows how to get something done. Clients are generally happiest when disputes are resolved sooner than later. When successful, mediation resolves disputes much more quickly than will the process of litigation combined with negotiation.