Tuesday, July 05, 2005

ALTERNATIVE DISPUTE RESOLUTION'S INFLUENCE OFFERS NEW DIRECTIONS FOR THE PRACTICE OF LAW

ADR's influence on the (r)evolution of the law.A couple of days ago I blogged about The Law Firm, the latest reality television program, and one which promises to be bad news for lawyers. As I noted earlier, this is hardly what the profession needs at a time when popular confidence in attorneys here in the U.S. has never been shakier. (Check out how the public ranked professions in terms of honesty in a recent Gallup poll—attorneys were near the bottom, surprisingly ranked even below politicians.)

Polls and television shows alike reinforce stereotypes about attorneys. Shows like The Law Firm overlook entirely the complexities of the ever-evolving legal field, entrenching negativity in a time of positive change for the profession. Inaccurate depictions of the practice of law serve no one, least of all the public.

What is missing from portrayals like those that viewers of The Law Firm will experience is the tremendous range of what today constitutes the practice of law and the degree to which that practice has evolved. Which is too bad, because it means that these significant changes will go largely unnoticed by the public--and, apparently, the media as well.

This evolution of the practice of law is the result of many factors--rapidly emerging fields and industries, technological developments, just to name a few. But there are other influences as well that may be discerned in considering the new directions in which the law has moved. Among these influences is plainly alternative dispute resolution (by which I mean all of its many forms—including mediation, negotiation, and conflict management and intervention).

What follows are but a few examples of signs of this influence in shaping the practice of law in the 21st century.

Collaborative Law.

Collaborative law is a rapidly growing specialty which changes radically the way in which attorneys and their clients on all sides of a dispute interact with each other in achieving resolution. Based upon principles of cooperation, mutual respect, and openness, collaborative law relies upon negotiation, effective communication, and joint problem-solving, rather than litigation, to resolve disputes. Attorneys and their clients agree to work together to share information and the work product of allied professionals. Collaborative law has been used most frequently in family, divorce, and small business disputes, but collaborative practitioners believe it has applications in employment contexts or other cases in which preserving or maintaining relationships matter.

Strategic Lawyering

If the fact that it made the cover of this month's issue of the American Bar Association’s ABA Journal is any indication, strategic lawyering is clearly a major trend for the legal field. This article, “The Strategic Lawyer” (which is not available online for free—meaning that unfortunately I can't link to it for my readers), details an emerging trend in business law practice, in which business and legal strategy operate together. In strategic lawyering the attorney’s role is not merely that of technician, limited to the interpretation of law or litigation expertise, but rather to assist clients to develop strategies to further an organization’s overall business goals.

The strategic lawyer helps the client look at the big picture and consider the problem holistically, determining what the client needs and what kind of resolution would best meet those needs in a way that creates value for the client. (It is not difficult to see how aligned this is with the work that a mediator does—working with parties to define interests and generate workable solutions that meet interests and maximize gain.) Strategic lawyering also includes assisting a client determine how a problem occurred and design future-oriented systems that will prevent such problems from occurring again. Rather than focusing on argument and deal-breaking, the attention is placed on effective negotiation, communication, and creativity.

The Revolution in Legal Education

The ABA Journal article mentions briefly the revolutionary approach to legal education at Northwestern University Law School, where the notion of strategic lawyering is embraced. The first-year curriculum at Northwestern now includes a course on “Communication and Legal Reasoning”, which, in addition to teaching students about legal research and writing, introduces exercises aimed at fostering team-building and collaboration. Northwestern also offers “Lawyer as Problem Solver”, a supplemental program for first-year law students aimed at helping students learn to “‘think like a lawyer’ in the 21st Century” and to master skills “[t]o serve clients effectively” that include “integrative negotiation, dispute resolution, creativity, coalition-building, decision-making, teamwork and leadership.”

Northwestern is by no means the only law school in the U.S. with this unique approach to preparing law students for 21st century law practice.

Most notable among them is the University of Missouri-Columbia School of Law, which in 1984 established a Center for the Study of Dispute Resolution under the supervision of director Leonard Riskin.

The Center, which has played a leading national role in developing law school curricula in dispute resolution, was the moving force behind the creation of a required course for first-year law students on “Lawyering: Problem-Solving and Dispute Resolution”.