This page takes you to several short articles describing the major themes of the book written by Julie Macfarlane for legal publications. You can also read an interview with Julie Macfarlane about her book.
- Dispute Resolution News (Bond University (2009) "The New Lawyer : Moving from Warrior to Conflict Resolver"
- New York State Bar Association, NY Dispute Resolution Lawyer (2009) "The New Lawyer : Moving from Warrior to Conflict Resolver"
- Lawyer's Weekly, June 13 2008 "The Demise of the Warrior Lawyer"
- Podcast for LEADR : Association of Dispute Resolvers (Australia) August 2008
- Interview with Julie Macfarlane : Windsor Law Now, Winter 2008
Bond University Article:
Dispute Resolution News : Bond University January 2009
“The New Lawyer : Moving from Warrior to Conflict Resolver”
Legal practice is showing signs of the evolution of a new professional identity for lawyers, as a conflict resolver working in new dispute resolution processes that advance the possibilities of just and strategic settlement. In an era of “vanishing trials” – we know that between 95-98% of civil claims end in a negotiated outcome short of a full trial - and sweeping civil justice reforms in both civil and family matters, effective negotiation and settlement skills are becoming increasingly central to the practice of law. Over the past 12 years I have conducted extensive empirical research on the changing role of lawyers in dispute resolution. My new book “The New Lawyer: How Settlement is Transforming the Practice of Law” (UBC Press, 2008) argues that changes taking place in legal practice and public culture as we enter the twenty-first century are driving the emergence of what I call the “New Lawyer.” The New Lawyer builds on her traditional expertise as a legal technician and an advocate, but adapts her knowledge and modifies her skills for a disputing culture that places renewed emphasis on settlement and consensus-building.
What is the evidence for change?
It has always been true that more cases settled before trial than proceeded to full adjudication. In the 1960’s, around 80% of cases (depending on the jurisdiction) settled before trial. Perhaps even more important than the rate of settlement is the timing of settlement. An examination of the data reveals that cases consistently settle right before trial – often on the courtroom steps. In the last 30 years, judicial policy-makers have focused on encouraging earlier settlement, motivated by widespread public dissatisfaction with the costs and delays of the justice system. To retain the interest of the public in using the legal system and lawyers to resolve their everyday problems and conflicts it is critical to provide access to justice using practical conflict resolution that does not require an investment of many years of time, and enormous sums of money on legal fees.
The consequence – in Australia as well as in the US, Canada, the UK and many other legal systems – has been the introduction of court-based programs, often mandatory, which bring the parties and their counsel together in mediation, to a judicial conference, or to offer early assessment and evaluation to explore and expedite the potential for settlement. Mandatory mediation is increasingly familiar to Australian litigants and their lawyers, as well as judge-led initiatives that encourage early information exchange and negotiation between counsel. There have been innovations in the private sector as well, most notably the development of collaborative family law, which seem to reflect a distaste among some sectors of the Bar for litigious processes and a desire for settlement-oriented processes that can better serve the needs of their clients.
Those clients are changing too. Clients now expect to be able to access legal information via the Internet. Our courts are witnessing a phenomenal rise in the number of self- represented litigants, and not only in family matters. Part of the explanation for this is the rising costs of legal services, but another element is the growing belief among the public that lawyers have become “unnecessary”, or even antithetical to achieving the goals of practical problem-solving in a timely manner.
How the New Lawyer is adapting to change
The increasing use of negotiation, mediation, and collaboration in resolving lawsuits belies the traditional conception of the lawyer as a “rights warrior” focused on expensive legal argument and arcane procedures, and is evolving a new professional identity which centers on value for money and practical problem solving for clients. This role moves away from the provision of narrow technical advice and strategies that center on litigation and fighting, towards a more holistic, practical, and efficient approach to conflict resolution. The New Lawyer is an evolved, contemporary version of the warrior lawyer (and perhaps closer to the traditional model of country legal practice familiar to the most senior practitioners in our small towns). In order to be effective in the pursuit of effective, timely, and just resolutions lawyers need to know when to set aside assumptions of adversarial behavior, understand when to strategize about accommodation and trade-offs, and when to focus on problem-solving. This means developing new skills of communication and persuasion and solution-creation that do not focus solely on entitlement and positionality, and avoiding the conflation of strength with inflexibility and unyielding argument.
New skills for the New Lawyer
My new book draws from more than 700 interviews I have conducted over the past 12 years with lawyers and their clients using new dispute resolution processes. It tells us a great deal, I think, about the types of “strengths” that the New Lawyer needs, both from the perspective of counsel themselves and from the perspective of their clients. Lawyers have told me consistently that in order to be effective in this changed environment they need to be intentional and strategic about working towards settlement, and not simply wait for a last-minute exchange of offers between counsel. Instead they need to think about how to bring the sides together in negotiation as soon as they feel they have sufficient information, and to seek ways to speed up that exchange of information.
Their clients increasingly expect value-for-money in their contracts with legal professionals and are far less deferential to the lawyer’s opinion – especially an opinion that proposes spending a lot of money without much in the way of tangible results. We are seeing a general decline in professional deference which is a challenge for many types of professional relationships, and not just law. Twenty-first century clients expect their lawyers to involve them in strategic planning and decision-making in ways that previous generations did not. They are interested in practical problem-solving and they both need and expect more than technical legal advice from their lawyer in order to get them this result. Otherwise clients are increasingly likely to “vote with their feet” – for example to represent themselves, or to seek limited advice to get them started or assist them at a particular point in the case (“unbundling legal services”), or – in the case of corporate or institutional clients - to turn the matter over to in-house counsel (now more than 10% of the profession) who commits to a budget and a timeline.
The New Lawyer needs new skills in order to work with this new type of client in new dispute resolution processes. Working to build consensus requires a different approach to the use of information and facts and presages a different type of advocacy – where the goals are more nuanced and more inclusive of the client than the traditional model of zealous advocacy. In my book I describe this as “conflict resolution advocacy”. This is still strong and committed advocacy, but it takes a different form. It means broadening the scope of client goals to include but also go beyond legal remedies, prioritizing these goals with the client, and placing this type of information on the table in order that the other side can they know what is at stake here for one side, while simultaneously seeking out the same type of information from them. In consensus-building counsel needs to be asking not “what information about our legal theory and bottom line must I hide from the other side in order to be powerful?” but rather “what information about my client and our case does the other side need in order to be persuaded to settle on our best possible terms?” This means that an evaluation of the legal issues in the case are still critically important in order to assess BATNA (“Best Alternative to a Negotiated Agreement”) but counsel needs other tools and techniques– including building trust and rapport with the other side, providing opportunities for both sides to listen to the other. Lawyers have told me over and over again that this new approach to advocacy requires them to themselves “in the shoes” of the other side in order to strategize about what would encourage this party to settle on their clients’ best possible terms. This is a significant adjustment from the traditional approach where ““(Y)ou don’t worry about the other side as much at a trial because ….well, they’re the other side. When you’re working towards a consensus—then it matters.”
The New Lawyer and third parties
The New Lawyer understands that not every conflict is about rights and entitlements and that these are conventional disguises for anger, hurt feelings, and struggles over scarce resources. If the New Lawyer is to act as an effective ally on behalf of her client, she must look at the whole problem and not simply the legal issues. She may need to bring in other specialist resources, and many of these specialists will not be lawyers – but that is precisely what they can contribute to the solving of the clients’ unique problem. Conflicts often require the input of third parties who can assist in the resolution of the conflict or with the provision of critical additional expertise towards this end. This means that the New Lawyer needs to be able to work with mediators and other advisors who can assist in the building of settlement. These third parties will offer a range of skills and qualifications, and new lawyers will be expected to assess what would be appropriate in any one given case. Not all these third parties are, of course, lawyers, but they can work with lawyers to compliment their skills and knowledge. We see this taking place in court-based family programs that include the expertise of child welfare specialists as assessors, in collaborative law where financial advisors and coaches are used to move the negotiation along, and in both court-based and private commercial dispute resolution where conventional commercial arbitration is increasingly overshadowed by a plethora of alternatives including case management, early evaluation, mini-trials and hybrid med/arb processes. Again, the clients of the twenty-first century increasingly expect this approach to practical problem-solving.
This emergent professional identity moves counsel beyond the narrow articulation of partisan interests towards the realization of a new, practical, conflict specialist role. It does not reject but rather builds on the traditional role of the lawyer as technical advisor. The bottom line is that this convergence between the old and the new is taking place before our eyes. Since my book was first published 9 months ago, I have heard from many lawyers all over the world who tell me that its description of twenty-first century legal practice resonates with their own sense of change. Most exciting is the potential for renewal of the profession as it adapts itself to the new conditions of the new century.
Julie Macfarlane is professor of law at the University of Windsor. Her new book “The New Lawyer : How Settlement is Transforming the Practice of Law” is available at ubcpress.ca.
Lawyer’s Weekly, June 13 2008
The Demise of the “Warrior Lawyer”
In an era of “vanishing trials” and civil justice reforms which favor the development of mandatory and voluntary settlement processes, effective negotiation and settlement skills are becoming increasingly central to the practice of law. Changes taking place in legal practice and public culture as we enter the twenty-first century are driving the emergence of what could be called the “new lawyer.”
Changes in the Structure and Practice of Law
There have been seismic changes in the legal profession—especially in its internal structures and in legal disputing procedures—over the last thirty years. A 98% civil settlement rate and the increasing use of negotiation, mediation, and collaboration in resolving lawsuits have dramatically altered the role of the lawyer. The traditional conception of the lawyer as “rights warrior” no longer satisfies client expectations, which center on value for money and practical problem solving rather than on expensive legal argument and arcane procedures.
The practice norms and values of the profession are adapting in response to changing client expectations, both business and personal. The cost of protracted litigation is unrealistic and ineffectual for many business clients, who are increasingly turning to in-house counsel (now almost 10 percent of the profession) or exercising closer controls over outside counsel. For personal clients, the lawyer-client relationship is fundamentally altered by a societal trend away from professional deference and a new demand for value for money and a more proactive role in determining how much time, money, and emotional energy they invest in legal services, and in what type of resolution.
The other significant aspect of change is familiar to all civil litigators - justice reform. The most important of these reforms have introduced mandatory settlement processes into the civil courts, in the form of mediation and judicial settlement conferences, and has also prompted the introduction judge-directed case management in order to move cases along more efficiently.
Changes in procedure, voluntary initiatives, and changing client expectations are coming together to create a new role for counsel and a new model of client service. This role is moving away from the provision of narrow technical advice and strategies that center on litigation and fighting (i.e. the “warrior lawyer”) towards a more holistic, practical, and efficient approach to conflict resolution. The new lawyer is an evolved, contemporary version of the warrior lawyer (and perhaps closer to the traditional model of country legal practice familiar to the most senior practitioners in our small towns). In order to be effective in the pursuit of effective, timely, and just resolutions lawyers need to know when to set aside assumptions of adversarial behavior, when to strategize about accommodation and trade-offs, and when to focus on problem-solving. This means avoiding the conflation of strength with inflexibility and unyielding argument.
New Skills for the New Lawyer?
In order to be effective in this changed environment, counsel needs skills in persuasive (rather than assertive or zealous) advocacy; to undertake a detailed mining of client priorities, options and goals rather assuming the goal is victory at all costs; to work in a partnership with their client rather than assuming the primary decision-making role. Above all, lawyers need to be able to place themselves “in the shoes” of the other side in order to strategize about what would encourage this party to settle on their clients’ best possible terms.
But let’s not throw the baby out with the bathwater. Both the traditional and the emergent model of legal practice place legal intelligence at their center as the primary and unique skill of the lawyer. Both approaches require excellent client communication skills, good writing skills, and, sometimes, persuasive oral advocacy skills. However, the new lawyer needs to apply these skills in different ways and in different processes, designed to facilitate earlier settlement. The data shows us clearly the new lawyer should assume that negotiation, sometimes directly involving her clients, is feasible in all but the most exceptional cases. This makes her negotiation skills and her ability to coach her clients in decision-making central to her professional role, not just an “add-on”.
The new lawyer understands that not every conflict is really about rights and entitlements and that these are conventional disguises for anger, hurt feelings, and struggles over scarce resources. The new lawyer must develop the best possible outcome—often in the form of a settlement—for her client, using communication, persuasion, and relationship building. This emergent professional identity moves counsel beyond the narrow articulation of partisan interests towards the realization of a new, practical, conflict specialist role.
Julie Macfarlane is a professor of law at the University of Windsor. The ideas discussed in this article are explored in depth in her new book, “The New Lawyer: How Settlement is Transforming the Practice of Law.”
New York Dispute Resolution Lawyer
The New Lawyer : Moving from Warrior to Conflict Resolver
Julie Macfarlane
Since my book - “The New Lawyer: How Settlement is Transforming the Practice of Law” (University of British Colombia Press www.ubcpress.ca) - was published in the summer of 2008, I have received emails from lawyers all over the world – not only lawyers in the United States and Canada, but also practitioners from Europe, Australia, and South Africa – who want to tell me that the ideas in the book resonate with their own sense of change. They recognize my description of the “New Lawyer”, who is adapting his art and modifying his craft to meet the new conditions of the twenty-first century. They are eager to share their own experiences of changes in legal practice, especially in the civil and family courts, as well as changes in the way that their clients – both personal and commercial - expect business to be done on their behalf.
This response to the ideas of “new lawyering” underscores the need for a more vigorous debate about the renewal of the profession. The profession needs to reflect on how to meet expectations of legal services that are effective, pragmatic and cost-efficient in achieving results, and in which clients are active participants and decision-makers.
How the disputing landscape and the public culture has changed
Legal practice is showing signs of the evolution of a new professional identity for lawyers. The “New Lawyer” is first and foremost a conflict resolver who works with dispute resolution processes, both new and old, to advance the possibility of just and practicable settlement. In an era of “vanishing trials” – we know that between 95-98% of civil claims end in a negotiated outcome short of a full trial - and sweeping civil justice reforms in civil and family matters, effective negotiation and settlement skills are increasingly central to the practice of law. There are innovations in the private sector as well, most notably the development of collaborative and co-operative law, reflecting a distaste among some sectors of the Bar for litigious processes and a desire for settlement-oriented processes that better serve the needs of their clients. Public and private developments that maximize the potential for early settlement both reflect and reinforce a public culture which is more interested in problem-solving at a reasonable price, and less interested in protracted disputing and Phyrric victory.
Because clients are changing too. The litigators’ mantra of “last man standing” looks increasingly unappealing to both private clients and institutions looking for results on a limited budget. Clients now expect to be able to access legal information via the Internet – however dubious the source and reliability, this changes their sense of knowledge empowerment. Our courts are witnessing a phenomenal rise in the number of self- represented litigants. Part of the explanation for this is the rising cost of legal services, but another element is the growing belief among the public that lawyers have become “unnecessary”, or even antithetical to achieving the goals of practical problem-solving in a timely manner.
How the New Lawyer is adapting to change
For the past 12 years I have conducted empirical research on the changing role of lawyers in dispute resolution and in my book I present the first evidence of the ways in which these changes translate into new and modified approaches to file management, client relationships, and dispute resolution strategies. There has been a great deal of talk about so-called “paradigm change” – instead the evidence suggests that the “New Lawyer” does not reject but rather builds on her traditional expertise as a legal technician and an advocate. Instead of utilizing her specialist knowledge to advance a winner-takes-all argument (traditionally rejected by the other side until the eve before trial), she uses this to frame a more nuanced argument that explores all the opportunities for the best possible settlement for her client.
The increasing use of negotiation, mediation, and collaboration in resolving lawsuits belies the traditional conception of the lawyer as a “rights warrior”, focused only on expensive legal argument and arcane procedures. “New laywering” moves away from the provision of narrow technical advice and adversarial strategies, instead engaging in a constant search for a practical, just and efficient conflict resolution. Sometimes - but by no means always - this means utilizing traditional adversarial methods. More often, in order to be effective in the pursuit of effective, timely and just resolution, lawyers need to know when to set aside assumptions of adversarial behavior, when to strategize about accommodation and trade-offs, and when to focus on problem-solving. This means developing new skills of communication and persuasion and solution-creation that do not focus solely on entitlement and positionality, and avoiding the conflation of strength with inflexibility and unyielding argument.
New skills for the New Lawyer
My book draws from more than 700 interviews I have conducted with lawyers and their clients using newer forms of dispute resolution (court-connected and private mediation, collaborative law, restorative justice, and settlement conferences) as well as traditional lawyer-to-lawyer negotiations. This data tells us a great deal about the types of “strengths” that the New Lawyer needs, both from the perspective of counsel themselves and from the perspective of their clients. Lawyers have told me consistently that in order to be effective in this changed environment they need to be intentional and strategic about working towards settlement, and not simply wait for a last-minute exchange of offers between counsel. Instead they need to think about how to bring the sides together in negotiation as soon as they feel they have sufficient information, and to seek ways to speed up that exchange of information.
Their clients increasingly expect value-for-money in contracting with legal professionals and are far less deferential to the lawyer’s opinion – especially an opinion that proposes spending a lot of money without much in the way of tangible results. We are witnessing a general decline in professional deference. This is a challenge for many professional relationships, not only law. Clients expect their lawyers to involve them in strategic planning and decision-making in ways that previous generations did not. They are interested in practical problem-solving and they expect more than technical legal advice from their lawyer in order to get this result. Otherwise clients are increasingly likely to “vote with their feet” – for example to represent themselves, or to seek limited advice to get them started or assist them at a particular point in the case (“unbundling legal services”), or – in the case of corporate or institutional clients - to turn the matter over to in-house counsel (now more than 10% of the profession) who commits to a budget and a timeline.
The New Lawyer needs new skills in order to work with clients in this new environment. The client will be far more hands-on in strategizing and decision-making than in the traditional model. The goal of working towards settlement by consensus immediately transforms the use of information and facts. It requires lawyers to broaden the scope of client goals to include but go beyond legal remedies, prioritize these goals with the client, and then relate them to long-term objectives. This is a different discussion than one which focuses only on obtaining facts relevant to making the legal argument. Further, it means placing this information on the table in order that the other side knows what is important to their opponent, while simultaneously seeking reciprocal information from them. In consensus-building counsel needs to be asking not “what information about our legal theory and bottom line must I hide from the other side in order to be powerful?” - but rather “what information about my client and our case does the other side need in order to be persuaded to settle on our best possible terms?” An evaluation of the legal issues in the case is still critically important in order to assess BATNA (“Best Alternative to a Negotiated Agreement”) but counsel needs other tools and techniques, including building trust and rapport with the other side, and providing opportunities for both sides to listen to the other.
This is an essentially different approach to advocacy, which I describe as “conflict resolution advocacy”. It is still strong and assertive but relies on relationship-building and information exchange rather than posturing and secrecy. Lawyers have told me over and over again that this new approach to advocacy requires them to put themselves “in the shoes” of the other side, in order to imagine what would encourage this party to settle on their clients’ best possible terms. This is a significant adjustment from the traditional approach where ““(Y)ou don’t worry about the other side as much at a trial because ….well, they’re the other side. When you’re working towards a consensus—then it matters.”
The New Lawyer understands that not every conflict is about rights and entitlements and that these are conventional disguises for anger, hurt feelings, and struggles over scarce resources. If the New Lawyer is to act as an effective ally on behalf of her client, she must look at the whole problem and not simply the legal issues.
The New Lawyer works with third parties
The New Lawyer may need to bring in other specialist resources to contribute to the solving of the clients’ unique problem. Conflicts often require the input of third parties who can assist in the resolution of the conflict or with the provision of critical additional expertise towards this end.
This means that the New Lawyer needs to be able to work with mediators and other advisors who can assist in the building of settlement. These third parties will offer a range of skills and qualifications, and new lawyers will be expected to assess what would be appropriate in any one given case, as well as how to get the best result from mandatory requirements in a court program. Sometimes these third parties are judges, playing a somewhat different role – as a facilitator of settlement - than their traditional one. Sometimes they are lawyer-mediators, assigned by court programs.
But these third parties are always not lawyers or judges. They may be third parties with other skills and specialties that they can bring to the process of conflict resolution, when we understand this as inclusive of but broader than legal adjudication or prediction. They may be highly effective non-lawyer mediators – or they may be child welfare specialists or tax specialists or others acting in a variety of roles, including evaluator, facilitator or simply advisor.
The future of “new lawyering”
New Lawyers face many challenges as they evolve their role. They will encounter ethical issues in informal dispute resolution processes that force deeper reflection about appropriate professional behaviours in these hitherto unregulated environments. They will need to consider and set appropriate client expectations for boundaries in a professional relationship where lawyer and client are working together more closely than ever before. They need to understand how to wear “two hats” – one that promotes consensus-building and settlement and another that on occasion must press litigation to its conclusion to obtain a good result. They need to assess what each case needs, in light of what the client wants and prioritizes. They need a more coherent, grounded, theory with which to confront the dilemma of when to advise a client to accept a settlement offer, and when to press on.
All these issues - in the context of lawyers’ and clients’ own experiences – are discussed in greater detail in my book. The result is an emergent professional identity that moves counsel beyond the narrow articulation of partisan interests towards the realization of a new, practical, conflict specialist role. It does not reject but rather builds on the traditional role of the lawyer as technical advisor. In fact, this convergence between the old and the new is taking place before our eyes.
Julie Macfarlane is Professor of Law at the University of Windsor. Her new book “The New Lawyer : How Settlement is Transforming the Practice of Law” is available at ubcpress.ca.
Podcast Download:
The podcast conducted by LEADR is available in mp3 format. Simply right click the link below, then select "Save As..." to download the podcast.
http://www.leadr.com.au/podcasts/Julie%20Macfarlane%20-%20The%20New%20Lawyer.mp3
Windsor Law Now Interview with Dr. Macfarlane
The new lawyer is here—so, who is she? Michellyne Mancini talks with Dr. Julie Macfarlane about the release of her latest book, which is sure to appeal to scholars, lawyers, and indeed anyone interested in developments in the legal profession.
Why is your book called The New Lawyer?
Well, the reality of the law profession today is that 98% of cases will not go to trial. And as a result, lawyers are being called upon to be negotiators and resolvers of cases far more often than they are litigators. This is quite a change in the profession in comparison to twenty-five or thirty years ago, and so that’s why I’ve called the book The New Lawyer.
Why are there not as many cases going to trial?
In part because it is too costly both in time and money. We have seen a rather dramatic rise in fees in the legal profession. Even corporate clients do not want to spend exorbitant amounts of money on legal fees. And for most individuals, it is simply out of the question. Often today, a corporate lawyer may be told, ‘You have x amount of money to work with; find us a solution’. As a result, lawyers are being called upon to find practical solutions for their clients, without necessarily using lengthy legal procedures and going all the way to trial..
Offering a client legal services today means more than fighting for their legal rights although that is very important. It is also, and often primarily, about finding a practical solution to the conflict. Let’s say you feel you’ve been wrongfully dismissed, for example. Do you want your dispute to drag out for years, costing you thousands of dollars, and increasing your feeling of resentment and anger with the people whom you are suing? Or, would you rather have an acceptable amount of compensation in settlement – but along with a reasonable letter of reference and the opportunity to move on with your life? Those are things that a court cannot give you.
So what is involved, then, in negotiation?
This book argues that there is much more involved in negotiation than simply preparing for trial. Negotiation isn’t just about sending the other side a written demand or a proposal. Being overly positional can make things worse since you can huff and puff yourself in to a corner. Negotiating is about genuinely assessing where the parties are willing to problem solve and working from there.
Negotiating can often mean mediation, and in Ontario mediation is mandatory in all civil cases.
Is there, then, a different attitude that need be adopted by the New Lawyer?
Yes, I think so. The bottom line is that the New Lawyer needs to be tuned in to what his or her clients want and need. They need to remember who is paying the bill and to provide good customer service to their client.
This rarely means behaving the the way that we see lawyers, for example as they are depicted on TV - where the lawyer is always standing up and insisting on her client’s rights. This media image is also different from the way many lawyers actually practice although many students come to law school expecting to be in court all the time and focused on asserting rights – rather than the reality of negotiating, problem-solving and (what I call in the book) “conflict resolution advocacy”.
Lawyers today need to exercise judgement in every case. They need to sit down with their client and establish the priorities of that client. And this can include what are referred to as “non-legal” aspects of a given situation as well, for both business and personal clients.
Could one say then that lawyers are having to take a more holistic approach to their work?
Yes, it is a holistic approach. Lawyers often tend to look at merely the legal facts, but there are many things to be considered in these situations, such as the preservation of family and business relationships. Now that’s not to say that lawyers are to become social workers, but they do need to be aware of the entirety of the situation and act with their client’s best interests in mind.
Do you think that young lawyers are disenchanted with the profession, or concerned about change? (Michelle – there is plenty of evidence of disenchantment. It is not related to this in particular however, it seems to be more about the crisis of identity generally – so I have deleted the rest of your sentence here, hope that’s OK)
I think that there is a lot of disenchantment. Students often make it through law school with an unrealistic and incomplete picture f what they’re going to be doing. People get in to their careers and don’t find themselves doing what they had imagined or what they were trained for (for example, appellate advocacy in court which is a rare occurrence in practice). Instead they are spending time doing tasks they have not always been well-prepared for like – like managing a difficult client or a difficult opponent or negotiating a settlement.
Negotiation is really not a significant part of legal education; we are not training lawyers to be skilful and intentional negotiators with clear goals and strategies. Instead we assume that new lawyers will somehow figure out how to blend making rights arguments with problem-solving and accommodation – but its not so simple to do that well. We need much more in the way of training for alternative dispute resolution.
In general, what do lawyers think of these trends?
My data shows that lawyers are accepting that they must spend more time settling cases than in court and that this is a good thing for two reasons: one, their clients like it, and two, over time lawyers become really good at this..
But of course it is an adjustment. For some lawyers being a negotiator does not have the same glory as being a litigator. So we need to change the image we have ourselves as lawyers to some degree. There have been a number of books on this theme in the last ten years – one of which is aptly titled The Lost Lawyer, which argues that many lawyers are suffering from a crisis of identity.
As well, some people might justifiably argue that this is all a throw back to the old lawyer, to the way small town lawyers used to practise, trying to settle disputes and provide an efficient solution for their clients.
It seems that these types of changes are being seen perhaps in other professions are well.
Yes, they are. Similar things are going on in the medical profession, for example. We live in an age where clients and patients are more sophisticated than ever before. People can go on the Internet and look up their rights or research an ailment, and they may come in to their doctor or lawyer’s office very prepared and looking for that professional to suit their needs. This generation does not accept professional authority in the way that our parents or their parents did, without question.
Whom do you think will read this book?
I think that members of the profession as well as anyone who is interested in what lawyers do may want to read the book. For lawyers who are already changing and incorporating conflict resolution in to their practices, this book provides them with a model for how they’re practising law and how to think about their own professional development into the future.
What types of research did you undertake for this project?
This book is the culmination of ten years of empirical research, using qualitative, interview-based research methods.
Dr. Julie Macfarlane, [BA Hons (Dunelm), LLM (Lond) PhD ] teaches [Lawyer as Conflict Resolver and a range of other ADR classes in the Faculty of Law. She has published extensively over the last 10 years on dispute resolution, including a widely used textbook (Dispute Resolution : Readings and Case Studies Emond Montgomery 2nd edition 2003). The New Lawyer is available from UBC Press.