Lawyer as Rights Warrior and Conflict Resolver
The New Lawyer: How Settlement is Transforming the Practice of Law by Julie MacFarlane
Clarence Darrow, Atticus Finch, Johnnie Cochran, Jan Schlichtmann and Gerry Spence – what image of lawyers do they bring to your mind? If your answer is a fearless fighter for justice, you are right. Be it in real life or in fiction, we are all familiar with the popular notion of litigation lawyers as rights warriors. But the litigation lawyer as a conflict resolver? Is he or she an imaginary character or an emerging reality?
With the recent announcement of the “Presumption of Alternative Dispute Resolution” initiative in the Subordinate Courts, lawyers will no doubt play a significant role in advising their clients of the various ADR options such as mediation, neutral evaluation and arbitration and representing them through one or more ADR mechanisms. It is, therefore, timely to examine the experiences of lawyers in other jurisdictions which have moved towards a more party-autonomous and less adversarial system of conflict resolution. The New Lawyer: How Settlement is Transforming the Practice of Lawprovides a good starting point to explore the opportunities and challenges for the lawyer as conflict resolver.
The author of The New Lawyer, Julie MacFarlane, is a professor who teaches Lawyer as Conflict Resolver at the University of Windsor. In The New Lawyer, she describes three key professional beliefs underpinning the traditional adversarial advocacy model: (a) the emphasis on rights-based approaches to conflict resolution; (b) the belief in the importance of procedural justice; and (c) the lawyer’s control of substantive decision-making in the lawyer-client relationship. Professor MacFarlane notes that dissatisfaction with the zero-sum game of the traditional advocacy model and other socio-economic factors have led to a new advocacy of conflict resolution in the United States and Canada. The new advocacy model seeks a holistic solution to client’s needs through problem-solving as opposed to zealous advocacy in an adversarial setting.
One example she uses to illustrate the new advocacy model is collaborative law. Collaborative lawyering removes the spectre of litigation by requiring lawyers to agree contractually with their clients to resolve the conflict by negotiation. If negotiation fails, the lawyers involved agree to be disqualified from continuing to act for their clients as an incentive to work towards reaching an early settlement. Collaborative law, therefore, changes the three key beliefs by involving other professionals and including non-legal solutions in resolving the conflict, giving the client more autonomy and participation in the negotiation process and extending the importance of procedural justice beyond the adjudication context.
Professor MacFarlane also makes two important observations about the new lawyer which should be borne in mind as the Singapore legal profession tries the new advocacy model. Firstly, she emphasizes that the lawyer’s new conflict resolution role is to complement, and not to replace, the existing adversarial advocacy role. The additional skill-set required of the new lawyer is geared towards conflict resolution, but builds upon the traditional principles of adversarial advocacy. Secondly, the law still has a key role to play under the new advocacy model. Professor MacFarlane dispels a misconception that the new lawyer need not use his or her legal expertise in resolving conflicts. On the contrary, even though legal remedies may not fully address the parties’ concerns, legal frameworks provide critical yardsticks in guiding parties towards settlement and remain an effective tool to protect vulnerable parties.
While Professor MacFarlane embraces the new advocacy model, she does not present a rose-tinted view and highlights a number of ethical challenges facing the new lawyer. One significant ethical issue is when does the new lawyer cross the line from placing legitimate pressure on to coercing his client to settle the dispute? This issue arises in collaborative lawyering as the disqualification clause means that a lawyer has a personal stake in ensuring that the dispute is resolved without resort to litigation and may, therefore, be more likely to coerce his client into settlement. Professor MacFarlane suggests that regular meetings with clients on whether to continue the collaborative process would alleviate the danger of coercion.
In conclusion, The New Lawyer is essential reading for lawyers who wish to understand the special skill-set and mindset change required under the new advocacy model and seize the opportunities offered in the Singapore legal landscape to be both rights warriors and conflict resolvers.
Chief Legal Officer
Director, Representation and Law Reform
The Law Society of Singapore
Note: The New Lawyeris published by UBC Press and is available at amazon.com