Lawyering in the new World
Lawyers in the new world have to wear several hats, to sustain and to succeed. More than anything else, lawyers have to develop skills to be problem solvers or to help in avoiding disputes to occur.
The use of the trial as the dominant form of dispute resolution is diminishing, yet law schools continue to train young lawyers as if the courtroom will be the principal venue for addressing legal conflicts. The narrow focus of legal curricula on litigation and appeals is insufficient to prepare young lawyers for the world that awaits them. While clients will continue to need attorneys who are effective in court, lawyers need to play a much wider range of roles in the modern world. Law-trained professionals need to work “upstream” in the life of conflicts. They must understand how to prevent conflicts, manage them more effectively and efficiently at an early stage, and successfully resolve those that ripen into legally-framed disputes. They are expected to be organizational problem solvers as members of multi- disciplinary teams. And attorneys in these broader roles sometimes have the opportunity to help organizations create or improve systems that prevent or address conflicts before and after they evolve into full-fledged disputes.
The law trained professionals may have various roles as
- An attorney who helps negotiate contracts for joint business ventures as they select and draft language for the processes that will be used to prevent, manage and resolve conflicts that may arise;
- A general counsel or outside counsel who revamps an employee grievance procedure or designs a pay-out system connected to the settlement of a multi-party dispute;
- A legal advisor or diplomat who counsels a country emerging from conflict on how to create multi-tiered justice systems that address punishment as well as reconciliation in an effort both to achieve justice and prevent future violence;
- A judge or court administrator who develops multiple settlement and case management processes to better serve litigants;
- A legislator or legislative staff member who develops new policy with enforcement mechanisms and an implementing regulatory scheme.
In short, dispute systems analysis is an essential skill in systems design, and one that we believe should be widely taught in law schools and better understood by attorneys.
The best dispute systems design may involve:
- Multiple process options for parties, including rights-based and interest-based Processes
- Ability for parties to “loop back” and “loop forward”between rights-based and interest-based options
- Substantial stakeholder involvement in the system’s design
- Participation that is voluntary, confidential and assisted by impartial third-party Neutrals
- System transparency and accountability
- Education and training of stakeholders on the use of the available process option