Apprenticeship for the Novice ADR Practitioner
By Mark Kane
An apprenticeship might be described as a practical study in the custom, form and precedent in an area of practice so that new entrants into a profession are competent. In the case of an apprenticeship in ADR, it will involve the shadowing of the work and decision making process of an experienced ADR practitioner so that the apprentice might become aware of the custom and practices which lie behind the governing institutional rules and beyond the substantive law applicable.
Even attorneys who have represented and advised parties in ADR procedures and have undergone the necessary training to be an arbitrator or mediator can benefit from the hands on experience of an apprenticeship. Working with an experienced ADR neutral is one of the best ways to understand the shift in mentality and applicable ethics required when moving from zealously representing a client to treating the disputing parties equally, remaining neutral and dveloping an effective temperament.
ADR studies at university or though one of the CLE programmes focusing on ADR are generally scripted and often deal with the core black letter law and any role playing or practice issues are necessarily artificial. In addition, such programs may teach that the resolution of such issues is at the discretion of the ADR practitioner, which is often true, but they do not deal with the hard decisions that arbitrators and other ADR practitioners have to face in discharging their duties. Thus, even those who have had the benefit of practice as an advocate and ADR qualification may still face a gap which should be filled prior to the practitioner holding himself out as competent and this gap may be filled by apprenticeship under an experienced and respected ADR practitioner.
One of the best ways to learn about these more practical issues and participate in an apprenticeship program is through membership in the Dispute Resolution Section (DRS http://www.nysba.org/drs/) of the NYSBA.
The core learning outcome for the apprentice is to see how an experienced ADR practitioner, whether acting as a solo dispute resolver or panel member, will respond in both substance and form to the issues that arise in a real life dispute. These learned precedents are of course not binding on the apprentice but do form a grounding and benchmark upon which to judge his own work prior to imposing a determination on the parties.
An ancillary benefit to apprenticeship is an opportunity to network and make connections with a more experienced generation of ADR practitioners. As such, the apprentice will be part of the community of ADR practitioners and keep abreast of new processes, trends, case law, insurance issues and practice models.
Notably, institutional arbitral bodies offering apprenticeship have been decreasing in recent years. By way of example from a common law jurisdiction, the Chartered Institute of Arbitrators (CIArb http://www.ciarb.org/) did offer a pupillage procedure under a Master Chartered Arbitrator in the past but this has been phased out and interested parties now need to solicit pupillage from an experienced ADR practitioner themselves. The Worshipful Company of Arbitrators (WCA http://www.arbitratorscompany.org/) have taken up some of this slack by offering a voluntary apprenticeship to those professionally interested in becoming a practicing arbitrator.
In summary, for those who are entering into practice as an ADR practitioner they should do so with the benefit of adequate preparation, which would naturally include academic and professional qualification plus experience gained through shadowing or apprenticeship provided such an opportunity can be found.
Mark Kane is an International Construction Lawyer practicing primarily in Europe, in addition to serving as an Arbitrator and Mediator in construction disputes. www.constructionandlegal.com