The Changing Role of Lawyers: Litigation to ADR

THIS ARTICLE WAS WRITTEN BY ANUPAM TEWATIA, A STUDENT OF MACQUARIE UNIVERSITY, SYDNEY

If a layman is asked, what does a lawyer do, their simple reply would be that a lawyer who litigates in various courts of law. Lawyers for the past number of decades have been corresponded with the adversarial legal system and thought of as the person who would help their client by arguing cases in the court. However, since the alternative dispute resolution has gained more prevalence, the role of lawyers has been changing from a role of arguing and debating to a role of settling and compromising.

Alternative dispute resolution (ADR) is when an individual acts as a mediator or an ADR practitioner and assists people in resolving their issues instead of the involvement of a court or tribunal. In this way, ADR is extremely useful as people can use it to help them sort out their problems without any added complications. ADR can be used for all kinds of disputes ranging from big disputes to small ones that will not necessarily require the involvement of a court or tribunal, making it very accommodating in nature.

This paper would bring out the changes in the role of lawyer in the contemporary era in accordance with the shifting of trend of legal system toward the alternative dispute resolution and the advantages and effects of these changes in regard to the different practices of dispute resolution under Australian law. As discussed by Julie Macfarlane in her book (The New Lawyer: How Settlement is Transforming the Practice of Law), the role of lawyers has changed to mere settlement facilitators rather than warriors who argue in the courts, I as an aspiring law student agree with Macfarlane and think that this new role of lawyers is more beneficial to the society and legal system.

Macfarlane has envisaged the merging of norms and traditions of different cultures of dispute resolution. The first being litigation and the second of consensus building culture has led to new ideas, practices amongst the lawyers. Even due to this convergence, the importance of legal advice remains the same and even today, it is one of the most integral part of professional responsibility.  [1]

Even though she has tried to show a convergence between the two methods the new advocacy does not follow the old method of’ challenging issues, advancing arguments, asking every question which might help the client’s case. The main purpose of any advocacy must be conflict resolution, whatever be the method. She states, [2]

The new lawyer will conceive of her advocacy role more deeply and broadly than simply fighting on her client’s behalf. This role comprehends both a different relationship with the client, closer to a working partnership … and a different orientation toward conflict … Conflict resolution advocacy means working with clients to anticipate, raise, strategize, and negotiate over conflict and, if possible, to implement jointly agreed outcomes. [3]

 Role of lawyers in Mediation:

In the contemporary era, mediation is regarded a standard feature of dispute resolution and is a mandate in most of the courts in Australia.[4] Mediation is defined as settlement process by intervention in a dispute by a mutually acceptable person who is impartial, neutral and has no legal authority to make decisions in a dispute but assists the disputing parties voluntarily to reach a mutual agreement over the concerned issue.[5]

Mediation is process where the mediator has not legal authority or power to force the parties to settle. Mediation is confidential and the most essential element of mediation is that the outcome of any mediation is voluntary and accepted by both the parties. Mediation is more informal and cheaper than most of the other alternative dispute resolutions.[6]

The approach of lawyers and their views while mediating is integral in achieving resolution to a dispute, as the thinking and the role of lawyers influence the process and success of the mediation.[7] The lawyers can embrace the philosophy of mediation practice in the process of mediation and engage in the collaborative problem-solving methods that are not adversarial in practice. [8]

In the recent times, most of the cases are no longer litigated but settled. This gives the lawyers more freedom and ways to settle cases rather than to take them for trial. The role of a client also plays an integral part in the process of change of the role of lawyers, as the number of ADR cases are increasing, the clients are also gaining knowledge about the advantages and disadvantages of ADR. Thus, shifting the role of lawyers as settlement providers as the clients want to avoid unnecessary expenses and delays in the courts.

This new model of lawyering practice provides legal expertise as the main skill along with client communication skills, writing skill, persuasive oral advocacy skills during the negotiation process. ADR allows the lawyers to assist the client in identifying what they really need and helping to achieve that by constantly assessing the situation’s risks and rewards accordingly. The main goal of the whole process is information exchange and exploration of solutions so as to reach a mutual settlement. This makes ADR a more efficient and practical approach to dispute resolution.

Like Macfarlane, Olivia Rundle has also outlined the five main ways and models by which the lawyers participate in the mediation process, which also describes how their role as a warrior is changing to more of a conflict resolver.[9] It also explains how the lawyers can assist the client without even being the mediator.

The first model focuses on the legal practice before and after the mediation process. The role of the lawyers in this model is to advice and coach the client before and after the mediation process. Rundle explains the second model as the ‘advisor observer’ who help the client at the time of meditation just to provide support and advice to the client. The lawyer plays a role of an observer and does not interact with the mediator and the other party during the mediation session.[10]

The third model as described by Olivia is the ‘expert contributor’. In this model of participation, the lawyer may engage with the other party lawyer and assist the client in reality-check and alternatives to settlement proposals but limit their input to providing advice to the client.[11] The role of lawyer in fourth model is as a ‘supportive professional participant’ which is similar to the third model. However, in this model, the lawyer engages more in the mediation process and takes a more active role in negotiating as well as drafting of agreement. [12]

The last model of Rundle is the ‘spokesperson’, this is the basic lawyer centred approach in which the lawyer acts as main mediator and negotiates on behalf of the client.[13] This is the approach which touches warrior role of the lawyer in the mediation process.

Rundle’s spectrum has various stages, and it varies from no involvement of the lawyer in the process to taking of absolute control of the mediation process. Rundle provides that the role of lawyers is not only left to argue but also to assist the client even when the lawyer himself or herself is not a part of the mediation process. During the process of mediation itself, the role lawyers’ takes on differing roles according to the approach they take.

According to me in the modern cases, lawyer have been more active and tilted towards the alternate dispute resolution approach which has made them more of a problem solver rather than warriors. As Macfarlane and Rundle have describe the shift of role of lawyers with the advent of ADR; my perspective on the issue is that, as the lawyers have become conflict resolver, it has made them more informal and friendly in the eyes of the society and clients. Earlier, there were people who were not able to afford a lawyer to get justice and receive damages but with the shift in their role as peace maker, it has made the whole process of justice cheaper. At first instance, the lawyers have started providing the client with options and scope of the alternative dispute resolution so that the client is well aware of the effects and consequences of the litigation process. The lawyers have also accepted the process of ADR in one way or the other. As my experience as a budding negotiator and a law student, the informality in the process of the negotiation and other alternative dispute resolution processes makes it easier for the client to provide all the information to the lawyer. The client themselves can understand the process of ADR, which makes it easier for them to realise their positions and interests. In the adversarial system, the clients are unable to understand the process and are therefore unable to understand the interest of both the parties which makes it difficult for them to understand the situation. As in the process of ADR, both the parties understand the situation and interests, both of them are willing to make sacrifice something to achieve mutual agreement making it easier to get justice, which is not possible at the time of court proceedings.

Advantage to lawyers as conflict resolvers:

The change in role of lawyers has also brought some advantages to the legal aspect and their mental health. It has become more efficient for them to concentrate on the importance of justice and other important legal spheres of the case.

Peace of mind:

A peace of mind is not too be underestimated. The satisfaction that comes with the knowledge that a client has received inexpensive and speedy justice brings peace of mind to every advocate. This also serves as an encouragement to work harder in the future.[14]

 Performance of responsibility towards society:

With being an advocate comes the responsibility to strive for justice. By sincerely participating in the mediation process, an advocate can positively guide the client in a way that the client saves time and money of the client. An advocate should remember that the client is part of the society and by helping the client, the advocate is helping the society. This should always be the primary objective of every advocate. [15]

Judicial responsibility:

Every advocate has a responsibility to save the crucial time of the judiciary. Saving the time of the judiciary equates to lessening the burden on the judiciary that will result in the judiciary using that time on more cases. The advocate can ensure this by mediating their client in a positive way.

Publicity:

What goes around comes around. If a client has good experience with an advocate and the advocate participates actively in mediation, then the client will refer the advocate further and will result in good word of mouth publicity. This will lead to more clients and job satisfaction. Through a sincere and seamless effort on the advocate’s part, the advocate will be able to gain both peace of mind and also better business opportunities.[16]

Is role of lawyers as settlement provider effecting the legal rules?

The role of lawyers as conflict resolver as discussed by Macfarlane and Rundle so much in their books that it is often described as the ‘New Lawyer’, however, this role of conflict resolver diminishing the actual role of lawyers of arguing is an issue to ponder about. In my perspective, ADR might make the lawyers informal and lazy. ADR has its own disadvantages as well; it does not include precedent which is the most important aspect in the adversarial system.[17]

Owen Fiss describes that the thrust of legal rights is towards surrendering of legal rights. He also asserts that the process of ADR is an assumption of rough equality between two parties and it is the rich who can afford the court room justice and the poor has to settle for the second best.[18]

As the number of cases in courts have started to show a relative decline, there may be a time when only alternative dispute resolution would be opted the mode of redressal. Another question that can asked is, if most of the case are settled with alternative dispute resolution will it result in the decline of the statue law and legal rules that are argued in the courts? Although this is not very likely to happen under the rule of law, however it would result in growth of incompetent lawyers who are good at negotiating and other ADR process but are not well versed with the statute law and other precedents.

[1]  Andrew Pirie,’ Book Review: The New Lawyer: How Settlement is Transforming the Practice of Law, by Julie Macfarlane’ (2008) 46(1) Osgoode Hall Law Journal.

[2] Andrew Pirie,’ Book Review: The New Lawyer: How Settlement is Transforming the Practice of Law, by Julie Macfarlane’ (2008) 46(1) Osgoode Hall Law Journal.

[3] Ibid.

[4] Melissa Hanks, ‘Perspectives on Mandatory Mediation’ (2012) 35 University of New South Wales Law Journal 92.

[5] ‘The Mediation Process: The Role of Lawyers. Neither is a “One Size Fits All”’, CRS Atlantic (Web Pag, 13 March 2015) https://www.crsatlantic.com/the-mediation-process-the-role-of-lawyers-neither-is-a-one-size-fits-all/.

[6] Ibid.

[7] Jean Poitras, Arnaud Stimec and Jean-François Roberge, ‘The Negative Impact of Attorneys on Mediation Outcomes: A Myth or a Reality?’ (2010) 26 Negotiation Journal 9.

[8] Julie Macfarlane, The New Lawyer: How Settlement Is Transforming the Practice of Law (University of British Columbia Press, 2008) 109.

[9] Olivia Rundle, ‘A Spectrum of Contributions That Lawyers Can Make to Mediation’ (2009) 20 Australasian Dispute Resolution Journal 220.

[10] Ibid 223–4.

[11] Ibid.

[12] Ibid 225.

[13] Olivia Rundle, ‘A Spectrum of Contributions That Lawyers Can Make to Mediation’ (2009) 20 Australasian Dispute Resolution Journal 227.

[14] http://www.legalservicesindia.com/article/2382/Role-of-Legal-Practitioner-in-Mediation.html

[15] Ibid.

[16] http://www.legalservicesindia.com/article/2382/Role-of-Legal-Practitioner-in-Mediation.html

[17] Gay R. Clarke and Iyla T. Davies, ‘ADR- Argument for and against use of mediation process particularly in family and neighbourhood disputes’ QLD University of Technology Law Journal.

[18] O.M. Fiss, ‘Against Settlement’ [1984] Yale Law Journal.