Dispute Settlement Counsel

Archive for April, 2010

Things change fast and laws sometimes lag the current reality.

I’ve been looking at the lawyer of tomorrow, which in society’s real time timetable means today’ lawyer.   Things change so quickly in today’s world that if you’re equipped to handle yesterday’s problems today, you may be “so five minutes ago” tomorrow.

The pace of today’s IT world is creating havoc for lawyers and lawmakers armed with tools and rules of engagement that just can’t keep up with today’s realities.  By the time a law is written, introduced, debated, passed and takes effect, it’s already outdated.  By the time the legal system’s civil procedure plays itself out, the problem presented to the courts to resolve is probably irrelevant to the parties that dropped it on the lawyers’ doorstep a few years ago.  Somewhere around the time the lawyers would be meandering through a year-long discovery process, drafting strategic motions and preparing for a trial that is highly unlikely happen (over 95% of cases filed with courts settle and never get to trial), today’s clients will have already either put a temporary band-aid on the problem or just walked away from it altogether.

Suggest to a young entrepreneur in his twenties the notion that the legal adversarial system will decide his dispute in about two to four years (if there’s no appeal), and the legal fees will run some five digit number and brace yourself for the look that roughly translates into something like this:  Three years?  Exactly what planet did you just arrive here from?  Or, in the language of the environmental, energy, green and organic communities, you will have just earned this undesirable label:  That is not a sustainable model.

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Photo credit: John Drysdale

A paradigm change is underway in the way legal services for resolving disputes are provided to clients, even though sometimes the movement feels so slow you can’t see or feel the change. The old traditional way of resolving disputes by suing, going to court and getting involved in years of expensive litigation is giving way to newer, more streamlined approaches designed to achieve faster, less expensive and more lasting resolution. The new approaches also minimize the bad by-products of contentious litigation: damage to relationships, reputations damage to business or family, and the draining of resources, energies and emotions.

Mediation has steadily become the vehicle of choice for parties who wish to avoid the warfare and adversarial process of litigation. Parties are no longer so willing to just hand over the decision making as well as control of the process to the lawyers, judges and juries. As the paradigm shift continues, the question will not be whether to use mediation and/or other non-adversarial method of dispute resolution like Collaborative Law, but rather how early in the process should the parties turn to these approaches.

But with change comes resistance, lack of understanding and lack of security, even if people know that what they have been doing isn’t working very well. The parties and lawyers know that the new playing fields of conflict resolution advocacy make sense and is logical, but change still is difficult.

In their new and enlightening book Switch, Chip and Dan Heath, who also authored Made to Stick, and who write a great column in Fast Company magazine, shed light on how to best effectuate difficult change. They note that even when you have persuaded “the Rider” (the practical thinker and thinking part of us), the more difficult task is to get “the Elephant” (our feelings and emotions) to accept the change. And the Elephant is always stronger than the Rider!

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