I recently attended the annual American Bar Association Dispute Resolution conference in San Francisco. Several themes emerged (for me) as fairly critical for modern lawyers. Here’s a top ten.

Problem-Solving and Risk Analysis is more than learning about the law or what a court might do. Most issues which clients bring to lawyers are resolved without going to court. Those which do get into the court system are rarely decided by a judge. Client interests and needs are usually much broader than the legal issues on which rights and remedies are based, and lawyers need to be able to identify and analyse these, understanding personal, professional and/or commercial factors.

Diagnosing underlying symptoms and exploring all options for early resolution generally benefits from Non-Binary Thinking. But how much of a lawyers’ training tends to be located in the right/wrong, black/white context of case law and judicial decisions? Adaptability and flexibility are key attributes of modern lawyering. Most learning comes from mistakes; most solutions from creative thinking. How can lawyers help clients adopt preventative strategies to avoid repetition of disputes?

Systems Thinking promotes ways to address deeper issues, by examining the linkages and interactions between component parts of a defined system over time and within a broader context. With the pace of change and complexity of problems increasing unpredictably these days, while resources are declining, standing “outside” and looking more holistically at an issue may be in a client’s best interests.

Increasing understanding of Implicit Bias reminds us of preferences over which we have no conscious control and about which we may be wholly unaware, gender and race being two of the most significant. But there are many more. These affect our responses and decisions in many situations, whether as advisers or clients, leading to errors, not least making wrong assumptions, jumping to conclusions and being blind to obvious facts. In turn, our relationships with others are influenced.

This links with Neuro-Science. Our understanding of the human brain has grown exponentially in recent years. For example, we now appreciate how much we seem to be at the mercy of the reptilian part of our minds, which developed in pre-historic times as our essential protection against external physical threats, enabling an instinctive, intuitive response to danger. That default reaction still kicks in today when we experience danger or pressure in a social situation. But fight, flight or freeze is not helpful in circumstances in which we need considered, reasoned and measured responses.

This takes us inextricably to Emotion. Nearly all decisions are made, at least in part, for emotional reasons. We need to be aware of the effect of our own, and others’, emotions in any given situation. Awareness will reduce the risk of ill-thought through and apparently irrational responses, while enhancing the quality of advice given and decisions made.

Use of Language is part of this. Legal language can be opaque and exclusive. When communicating with another client or lawyer about alleged losses or seeking to vindicate or defend clients’ rights, some lawyers can be aggressive and adversarial in tone and word choice. Paradoxically, that approach can be detrimental to one’s own client’s interests. Communicating effectively in tough situations is a skill we all need to learn.

A lawyers’ job should be to achieve the best possible outcome for a client. If so, essential to any lawyers’ toolkit should be an understanding of Behavioural Economics and how outcomes can be optimised, complementing a better understanding of how parties actually act in real negotiations. This is big picture, “macro” stuff, not mathematical modelling.

Clients’ interests are best served by skilled professionals who understand and can deploy interest-based or “integrative” Negotiation and Mediation strategies. Cooperative bargaining can produce a better overall outcome for parties working together than either could achieve on his own or adversarially. This is most effective when parties wish to establish or continue a business or personal relationship. Mediation enables this kind of negotiation to be conducted even when there seems to be deadlock or unwillingness to progress.

Finally, how about Purpose and Ethics? What is the point of being a lawyer? How well do we understand law’s role in modern society? In what ways does law converge with other disciplines? If public opinion about lawyers is low, what can we do? How do we learn about clients’ real needs? How might we reduce reliance on lawyers and the amount of legal costs? In complex, uncertain, volatile times, what changes might we need to consider?

[Last month I blogged about our “Pop Up” Brexit mediation event. If of interest, here is a fuller report.]

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6 comments

  1. John, a thought-provoking post, as usual. And let me reciprocate with similar provocation of my own:
    The entire legal profession has lagged in adapting to developments in the science of cognition and decision-making. But this may not be as bad as it sounds because most of us in the profession lack the scientific skills required to understand what can and should be incorporated and how.
    Take, for example, your mention of the “reptilian brain”. While it may be a convenient metaphor, how can we lawyers know if this accurately represents scientific consensus and is not misleading? Answer: Google “reptilian brain” and the word “debunked” or “bull-s..” (a useful way to find contrary views), as I just did, and you will find it was an idea popularized in the 1970s by Carl Sagan, a brilliant astrophysicist, but not a biologist or neuroscientist. And there are reasons to think it is both inaccurate and misleading.
    But is it wrong? I don’t know. I am not a neuroscientist.
    What our profession desperately needs, starting in law schools, is an introduction into relevant science so that we can acquire the tools to skeptically assess developments and understand whether or how to adapt what we do.
    Another example: for years I have taught in negotiation classes the study of Israeli criminal judges and the effect of distance from meal (low sugar levels to the brain) leading to a significant drop in the use of their discretion to grant of parol requests. The study is cited by Kahnemann in Thinking Fast & Slow. But recently I discovered there is peer review that calls into question the finding. The drop in favorable decisions could simply be due to scheduling, ie, that judges tended to postpone hearing the harder cases to the end of the morning. When I read this, a light went off… I’ve actually seen that with many judges! And is it reasonable to think that such highly trained judges would be so dramatically different in their decisions just because they had not eaten in a few hours? But none of this occurred to me when using the study in negotiation courses. I wasn’t trained to critically evaluate or provide peer review of scientific studies.

    1. John, true, and let me take that as an opportunity to express the hope that you and other readers of the Kluwer blog will join us at an upcoming Global Pound Conference event, where all ten of your points should be discussed and debated. Just as you have with your post, the thrust of the GPC is to ask the fundamental question of how to bring dispute resolution from centuries old tools and mindsets suited to the modern age in which we live.

  2. Hi John,

    I enjoyed your reading your post. I think that law should be taught much early on in our young people’s lives and I think they should be made much more aware of conflict and that it is a part of life too the skills we all need are how we manage conflict and this is something we should teach our young people where often its not monitored within the meeting room or a lawyer and can become fights and severe bullying and victimisation on one or a targeted group that doesn’t fit the current mold.

    It would be helpful if we had a larger budget and more representation for Civil Legal Skills that are much more accessible to the wider community and if Solicitors and Lawyers firms came down to the every day woman or man’s reach as still they are far too removed from the general public.

    Again it would be helpful for Law and Mediation to become apart of our School curriculum equipping us all for the resolution of our disputes and helping us all to grow in our understanding of law and justice.

    Kind regards,
    Danielle

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