Thoughts on Recent Evolutionary Changes in the Disputes Field, and the Resistance that Some of These Changes Have Experienced

It’s interesting to observe the development of various “movements” within the disputes field during the past generation, and the extent to which they have experienced resistance.

The first modern dispute resolution movement: From litigation to arbitration and mediation and other forms of ADR.

Professor Julie MacFarlane in her book “The New Lawyer: How Settlement Is Transforming the Practice of Law,” describes the “mediation explosion” of the 1980s. She says that this was initially sparked by family lawyers who were appalled by the harm that litigated divorces were inflicting on their clients.

In the preface to the book she points out that “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.” She describes how the patience and deference that consumers of legal services had previously given to their lawyers “began to fray around the edges,” and how this ignited a growing demand among clients of all types, both individual and corporate, for their lawyers to serve as conflict resolvers rather than as warriors, in the use of negotiation and mediation.

We all remember how, during the 1980s, trial lawyers resisted the growing demand from the public for better ways to resolve disputes, to avoid the expensive, adversarial and lengthy litigation system. Lawyers coined the term ”alternative dispute resolution” to describe the new forms of dispute resolution, suggesting that there might be something unnatural about this movement. (Some lawyers even facetiously characterized the initials “ADR” as standing for “Alarming Drop in Revenue.”)

A personally-remembered observation from my home state: I vividly remember Chief Justice Harold Clarke of the Georgia Supreme Court saying, in one of his annual reports to the Georgia bar in the late 1980s: “I am now going to utter two words that will strike terror into the hearts of all lawyers and judges in this audience: those words are “arbitration” and “mediation.” Chief Justice Clarke then told his audience that the public was demanding better ways of resolving disputes, and that they had better get used to these new processes, and adapt their law practices to accommodate to these changes. It took considerable advocacy, effort and time to bring ADR into the mainstream, but under Chief Justice Clarke’s leadership the Georgia Supreme Court enacted a new ethical standard for lawyers, which had two facets: First it required all trial lawyers to advise their clients about the availability of alternatives to litigation. Second, it required all transactional lawyers to advise clients entering into contractual relationships about the availability of processes that could be incorporated into their contracts which could provide alternative ways of resolving disputes.

Notwithstanding initial skepticism and opposition, this mediation explosion represented a paradigm shift which ushered in the broad acceptance and use of mediation and other forms of ADR for the resolution of all kinds of disputes. CPR has of course been a leader in the development of this movement.

A second dispute resolution movement: From conventional ADR to collaborative family law:

Professor McFarlane’s book describes family law as “an area in which voluntary participation alternatives to litigation have grown exponentially, primarily in the form of family mediation or collaborative family lawyering.”

According to a recent article written by Norman Solovay and Lawrence R. Maxwell, Jr., the collaborative dispute resolution process, also known as collaborative law, was invented in 1990 by a Minnesota family lawyer named Stuart Webb. The article describes the differences between mediation and collaborative law, including the fact that collaborative law cannot be court-ordered but is rather a voluntary, unstructured, non-adversarial approach to resolve disputes whose protocols include commitments to cooperation, teamwork, full disclosure, honesty, integrity, respect and civility. A cornerstone of the process is the undertakings of both the parties and their counsel that counsel will withdraw and not participate in any future litigated proceeding involving the subject matter of the collaborative process in the event that no mutually satisfactory settlement is reached.

The collaborative law process is described as building on the tradition of lawyers as problem solvers and counselors, and is credited with enabling individuals, families, businesses and organizations to maintain control over their relationships by resolving their disputes amicably.

A third dispute resolution movement: Expanding collaborative law into other areas of conflict:

The Solovay-Maxwell article reports that collaborative law advocates are now promoting and predicting its widespread use in non-family law civil matters, including business, trusts and estates, intellectual property, employment, personal injury, medical error, real estate and construction disputes. The private collaborative law agreements or protocols initially developed by family law practice groups are increasingly being adapted for broader use. (In “cooperative practice,” a variant of Collaborative Law, there is no requirement of disqualification.) The collaborative law movement is now poised to receive even greater attention with the anticipated finalization this year of the Uniform Collaborative Law Act, which makes no distinction between family collaborative law and the use of collaborative law in other practice areas.

A fourth dispute resolution movement: The effort to make lawyers better evaluators of the outcomes of disputes and adjust their skills toward advocacy in dispute resolution:

Susan Hammond, in a recent article “Let’s Not Make a Deal” published in the Oregon State Bar Bulletin, describes a recent study reported in the Journal of Empirical Legal Studies regarding decision-making in unsuccessful settlement negotiations. This study reflects on the reasons why cases do not settle and the costs and benefits associated with those decisions, and the article offers advice to lawyers on how to better advise clients about settlement and evaluation of their disputes.

The article points out that although almost all cases are resolved through settlement rather than trial, attorneys nevertheless receive much more training in the skills of trying cases in court than they receive in dispute resolution advocacy, Many lawyers who get involved in mediation simply present in mediation some version of their prepared litigation closing argument. On the other hand the best dispute resolution advocates come to mediation ready to learn something new, and to thoughtfully analyze cost, risk, opportunity and non-economic factors that can bring about settlement. They act as counselors. Their clients likewise are prepared to see their lawyers play a different role in mediation than they would at trial, and they are ready to appreciate that difference. The article points out that this empirical study will likely be repeated in the year 201, and asks the question whether the new study will show that, as a profession, lawyers are helping their clients get better at knowing when and how they should make a deal.

The independent development of dispute prevention techniques in the construction industry.

Quite independently of the ADR movement, the construction industry has taken a unique approach to disputes. Because of the multiple-relationship, high-risk and time-sensitive nature of the construction process, the construction industry, a veritable crucible of conflict, has always placed a premium on prompt solutions to problems. Out of necessity that industry has invented, experimented with, and developed to a high degree of sophistication a number of techniques for the anticipation, prevention, management and control of problems and disagreements, and the “real time” resolution of any incipient disputes that may have resulted from problems. During the past generation, that industry has brought those techniques to an extraordinarily high level. The objective of these techniques is to get problems resolved by business people, not lawyers, and particularly to keep disputes out of the hands of “strangers” to the construction project itself.

The new “Anticipation and Prevention of Disputes” movement.

CPR, concerned again with the high costs of resolving disputes even through the use of modern methods of alternative dispute resolution, and inspired by the construction industry prevention model, is now in the process of participating in an effort to use anticipation and prevention principles and practices to prevent problems from occurring in the first place, and to keep those problems and unexpected events that do occur from escalating into disputes, by finding ways to prevent, control, manage, and achieve real-time resolution through such techniques as the use of standing neutrals.

Thus the dispute resolution process, which originally used only litigation, and then moved to arbitration, and then moved to mediation, and more recently has begun to embrace collaborative law, is now about to experience another paradigm shift: using principles of anticipation and prevention to deal with the causes and not just the symptoms of disputes, thus moving the process still farther “upstream,” closer to the origins and sources of disputes, in an effort to eliminate disputes entirely.

Possible parallels between resistance to the paradigm shift from litigation to ADR and possible resistance to the paradigm shift from conventional ADR to a new practice of anticipation and prevention.

The movement from litigation to ADR was a paradigm shift, and for that reason, it met with noticeable resistance from trial lawyers. The subsequent movements in the disputes world described above represented only gradual normal evolutionary changes, and thus did not meet any resistance except the normal human resistance to change. However, the new movement from resolution to prevention is clearly another paradigm shift.

Given the previously-experienced resistance to change that occurred in the late 1980s, it would not be surprising to discover that the movement from resolution to anticipation and prevention in an effort to eliminate, not just resolve, disputes, could meet the same kind of resistance that was experienced in the late 1980s to the previous paradigm shift in the disputes world, but with a difference:

Today there exists an entirely new and thriving industry of dispute resolution professionals and dispute resolution providers, undreamed of in the 1980s, whose training, energies and careers are devoted to resolving disputes.

To the extent that the new movement is successful in preventing disputes from developing, it will diminish the need for not only courts and trial lawyers, but also for arbitrators and mediators. Thus, while in the late 1980s the resistance to change came only from trial lawyers, today arbitrators, mediators and other dispute resolution professionals may instinctively resist change and exhibit the same kind of skepticism and resistance to the latest It is ironic indeed to contemplate that dispute resolution professionals, whose very existence was encouraged and fostered by CPR and the business world generally, might resist a new movement whose objective is to eliminate disputes entirely.

Will the new paradigm shift experience resistance?

I hope that this will not be the case. Dispute resolution professionals, of all people, should inherently recognize that the essence of ADR is its innate flexibility and adaptability to the needs of the public; that the disputes field is constantly changing; and that invention and creation are a part of the life blood of ADR. New ideas and innovative processes for dispute prevention, control and resolution are essential for the growth and sustainability of the field.

Skills and specialties in conflict management have been growing in recent decades, and the recognition and uses of these skills have also been growing rapidly. Up until now, these skills have been used mainly on conflict that has already happened. But the anticipatory/preventive/proactive concept provides a philosophical frame for a different way of thinking about conflict in advance.

Dispute professionals should be able to adjust their focuses and learn that many types of problems which become conflicts could be either averted entirely or handled at minimum cost, if the necessary skills are applied further “upstream.” Thus, dispute resolution professionals should be encouraged to further develop their skills to become dispute anticipation and prevention professionals and add “problem anticipation and dispute prevention” techniques to their professional credentials. Individual dispute prevention professionals, by studying these new concepts and conducting further research into how they can best be adapted for use in all kinds of business contexts, can use these new skills to broaden the horizons of their prevention and resolution repertoires.

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