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Chapter 33

The Evolution of the New Lawyer:How Lawyers are Reshaping the Practice of Law

Dr. Julie MacFarlaneUniversity of WindsorWindsor, ON

Reprinted with permissionJournal of Dispute Resolution 2008

2008 National Family ProgramMuskoka Ontario


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The Evolution of the New Lawver:How Lawyers are Reshaping thePractice of Law

, Dr. Julie Macfarlane*There are signs of the evolution of a new professional idntity for lawyerswhich, while rooted in traditional models of lawyering, is responsive to a newclimatc of disputing. In an era of "vanishing trials"' and civil justice reformswhich favor the development of mandatory and voluntary seltlement processes,' effective negotiation and settlement skills are becoming increasingly central to thepractice of law and occupy more of lawyers' real time and allention than adver-

sarial trial lawyering. My book "The New Lawyer: How Settlement is Transforming the Practice of [.ad' draws on empirical research to analyzc different aspectsof this new lawyering role and the changing norms of legal practice. The bookargues that changes taking place in legal practice and public culture as we enterlhe twenty-first century arc driving the emergence of what I call "the new lawyer."The profession is yet to fully come to ternx with changes in the disputinglandscape or the many other ways in which legal practice has changed-for ex-ample its business model, ils demographics, and the changing expectations ofclients---over the last thirty yea$. Some degree of hesitancy and even reluctanceto embrace and respond to change should not surprise us-some may be hopingthat if &ey wait long enough, the changes will simply go away (a sentiment mostcommonly expressed about procedural changcs which increase judicial oversightoflitigation and require earlier efforts at settlement). Changes in professional roleand identity are always incremental and often painful. Regardless of the pace ofchange, however, there are ildisputable signs that at least some members of theprofession are rethinking legal praclice and service models in order 1o beatermatch fte needs and expectations of twenty-first century clients, both corporateand personal.In this paper, I shall first briefly examine some of the most significanlchanges affecting legal practice, especially civil litigation, and ask what adjust-ments in lhe professional identity and role of the lawyer these imply or perhapseven require from lawyers. I shall also consider what evidence we have for theevolution of the "new lawyer." I shall then approach these questions from a prac-tice-based perspe.ctive, Iooking specifically at client adYocacy, legal negotiation,and the lawyer-client relationship.

* Dr Julie Macfarlan. is Profcasot ot bw st thc Univctsity of Windsor' He. Dw boot' TllE NEwLAWYER : How SETLEMEN'r rs TRANSFoRMINo fiE PRAc'TlcE oF I-Aw, is Publishcd by Univctsityof British cotombia Press md dist.ibulrd in thc US by John Hoplrits University PrEss'| . MajJ{ Gal,!nr.t, Th. vanithirrg Tiul: An E amination ol Ttials and Rclat.d Motte$ in Fcd.ftrl ondStatc Cou s,l J. oF EMPIRICAT I-!6AL STUDIES 459 (2004). Th most rcctnt (2002) sludy showi thatjust 1.8 percent of lilings in lhc US Fcdeml Cood 8o to a full tri8l, down from ll.5 lerccnt in 1 2.Id. at 459 ,

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JOURNAL OF DISPUTE RES,OLUTIONI. TIMES OF CHANCE

[Vol. 2008

There have been seismic changes in the legal profcssion---+specially in its in-ternal structures and in legal disputing procedures-over the last thirty years. The"vanishing trial" phenomenon is just one aspect of this, but it is a vital one. A98% civil setdement ratez and the increasing irse of negotiation, medialion, andcollaboration in resolving lawsuits haye dramatically altered the role of the law-yer. The traditional conception of the lawyer as "rights warrior" no longer satis-fies client expectations, which center on value for money and practical problemsolving rather than on expensive legal argument and arcane procedures.At the same time, the business model ofthe profession has altered dramatical-ly. Legal practice is now dominated by large firms and corporate customers. Theeconomics of legal practice have been transformed by widespread reliance onbillable hours, which reinforces both internal hierarchies and the traditional, time-consuming task of legal praclice-the accumulation of vast amounts of informa-tion and procedural machinations, while litigation moves along at a sluggish pace'Yet business clients are incrcasingly practicing self-help when it comes to avoid-ing prohacted litigation. The number of in-house counsel has risen ftom 3.29o ofthl profession to;lmost t0% in the last fifty years.l Lawyerc tell me over andover that their commercial clients are no longcr willing to simply let $em run thefile; reponing requirements have changed, and there is rnore oversight to justifythe costs ofcontinuing litigation wilhout settlement. For personal clients also, thelawyer-client relationship is fundamentally altered by the trend away from profes'sional deference. Cliens of all types want value for money in legal services'Clients are increasingly demanding a role in determining how much time' money'and emotional energy they invest, and in what type ofresolution' Both corporateand personal customers appear increasingly unwilling to passively foot the bill fora traditional, litigation-centered approach to legal services, prefefling a morepragmatic, cost-conscious, and time-efficient approach to resolving legal prob-lems.A growing reluctance to spend very large amounts of time and money on liti'gatior has provided an impetus for another highly significant change: justicereform. This is usually initiated by goYernments that have trecome impatient withthe pace and cost of proracted litigation clogging the couns. The most imporlantof these reforms have introduced mandatory setdement processss into the civitcourts, in the form of mediation and judicial settlement conferences. The samerationale---encouraging earlier settlement in as many cases as possible-hasprompted the innoduction of judgedirected case management in order to movecases along more efficiently.Irss lrumpeted and so far less penasive, we can point to similar changes tak-ing place in criminal law practice, with the introduction ofdiversion programmingand restorative justice alternatives to incarceration, effectively institutionalizingplea bargaining, and offering a range of new processes and sanctions. In familypractice also, a quiet revolution is taking place' The family cou s have often been2.|d.3. Robln L Nclson, 7h c Futur.r oJ Am.i@tr urr'ry?rs: A Dern!)BraPA. Prolle ol a ChanSiaq Pro'fcssiaa in a Cha'Biig socipD', in l,AwYmsi A CRmc^L READER 20' 2l (RichaJd L. Abel. ed.' 1997).

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No. 1l The Evolution ofthe New Lawl,ermore reluctant to press mandatory settlement procedures on parties because ofobvious concerns (articulated by an effective lobby) about the potcntial for coer-cion and power abuse between spouses. Nonetheless, family courts across NorthAmerica have been developing diverse, multi-service programs for the past twentyyears, offering parties mediation, counseling, snd sometimes a meeting with afamily judge in an effon to resolve matters shorl oftdal. As well, family law is anarea in which voluntary participation in alternatives to litigation has grown expo-nentially, primarily in the form of family mediation or Collaborative family la-wyering. Finally, as the courts push mediation on recalcitrant parties and lawyers,many corporations and institutions have delermined for themselves that they wishto adopt new voluntary policies and codes of practice &at emphasize a problem-solving approach to conflict resolution and aim to reduce their litigation budgst.

Changes in procedure, voluntary initiatives, and changing client expectationsare coming together to create a ntt role for counsel and a new model of clientservice. This role is moving away from the provision of narow technical adviceand strategies that center on litigation and fighting (i.e. the "wanior lawyer") to.wards a more holistic, practical, and efficient approach to conflict resolution. Theresult is a new model of lawyering practice that builds on the skills and knowledgeof taditional legal practice but is different in crilical ways. The new lawyer is notcompletely unrelated or dissimilar to lhe warrior lawyer but an evolved, contem-porry version. The hundreds of lawyers I have interviewed and observed in thecourse of empirical research over the last ten years have told me a great deal aboutfte types of skills and knowledge they necd in order to be effective in lhis newenvironment. l,awyers have many stories to tell about the adjustments in mindsetand skill set that are required by these new processes and rhe ways in which theyhave altered their rclationship with their cliens, whether commercial or personal.They also speak about the changes in both their clienls' expectations and theirown expectations of ptofessional po$'er. As well, I have in(eniewed hundreds ofclients who have given me insight into what they need and want from thcir law-yers, as well as into their own struggles with adjusting their image of a lawyerfrom that of a "warrior" to a "conflict resolver." Many oiher researchers also haveexplored the significance and impact of these new processes, building a body ofempirical work that points to imponant patterns and themes in the changing Datureof lcgal practice.

Both the emerging and the traditional models of lawyering place legal intclli-gence at their center as the primary and unique skill of the lawyer. Both ap'proaches require excellent client communication skills, good writing skills, and,sometims, persuasive oral advocacy skills- Both approaches require effectiYenegotiation. However, the new lawyer realizes that she needs to utilize theseskills in different ways and in new and different processes, designed to facilitateearlier settlemenl. The goals of these processes are almost always informationexchange and the exploration of options. Sometimes they include the seltlementofsome peripheral issues, sometimes full resolution. The warrior lawyer is morefamiliar with processes lhat rehearse and replay rights-based argumenr, look forholes in the other side's case, and give up as little information as possible. Thenew lawyer bases her practice on thc undisputed fact that almost every contentiousmatter she handles will senle wiftout a full rrial, and some will senle without ajudicial hearing of any kind. She assumes that negotiation, often directly involv-'ing her clients, is feasible iD all but the most exceptional cases and thar in this

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4 JOURNAL OF DISPUTE RESOLWION [Vol. 2008capacity she is an important role model and coach for her clients. The new lawyerunderstands that not every conflict is really about rights and entitlements and thatthese are conventional disguiscs lbr anger, hurt fcelings, and struggles over scarceresources. The new lawyer recognizcs that part of her role is to assist her clientsto identify what they really need, wbile constantly assessing the likely risks andrewards as well as what they believe they "descrve" in some abslrsct sense. Shealso understands the purpose and potential of information in settlcmcnt processes.In adversarial processes, information is used to gain an advantage over the otherside (information as "power over"); in settlement meetings, information is used as' a valuable shared resource to broaden the range ofpossible solutions (informationas "power with"). The new lawyer must develop the best possible outcome-often in the form of a settlement-for her client, using communication, persua-sion, and relationship building. This is a different role than making positionalarguments and "pufhng" up the case. It moves beyond the narrow aniculation ofpartisan interests to the practical realization of a conflict specialist role for coun-sel.

II. THE THREE KEY BELIEFSLaw students are still graduating ftom law school imagining ftat their appel-

late moot court experience is representative of the work they will be doing in prac-tice. Few schools offer negotiaaion and mediation advocacy courses- There is amisfit between the image of legal practice projected by law school and the reality.There is also a misfit between the core beliefs and values held by many lawyers,often unconsciously and uncritically, and the practical exigencies of the new dis-puting environment. The clear trend away from trials towards more formalizedand numerous methods of settlement Degotiation has yet to fundamentally resbapelegal education or some of the traditional norms of "good lawyering," Resistanceto moving forward with new approaches to legal Practice and client servicc ap-pears to come from a set of entrenched and largely unexamined key belicfs heldby lawyers about legal practice.There are three beliefs which are fundameDtal to the way that law is tradition'ally practiced----so fundamental that they are rarely raised to the level of self-conscious articulation. For the purposes of this discussion they can be summa-rized hrielly as follows:

1. A default to rights-based strategies and processes (ard an assump-lion that these are always the most appropriate and eflective);2. An image of justice ali process rather than ouicomes-while out-comes may be capricious and hard to predict, it is the stable knowa-ble procedural steps of thejustice system that afford "justice"; and,3. That the lawyer is "in charge" in the lawyer-client relationship, byvirtue of her superior legal knowledge which is the bedrock of therights-ba.sed stategies she will pursue.

These three kcy bcliefs are first formed at law school and lhen challenged andrefined in practice. They translate into what behaviors and praclices are seen asprofessional, appropdate, and effective. These key beliefs-largely unchangedand unchallenged through two hundred years of the legal profession-are holding

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No. ll The Evolutiott of the New lawl'erback the development of a modified professional identity for lawyers which ismore fully responsive to significant changes in the disputing enyironment-changcsdriven by couns, policy-makers, and the consumers of legal services. Modifyingthese beliefs inevitably affects the behaviors and practices that are critical to thelawyer's professional identity. In the remainder of this paper I shall consider threecrucial areas of practice for the new lawyer: client advocacy, legal negotiations,and the lawyer/client relationship. In each of these dimensions of legal practice,the practical relevance and the conceptual clarity of the three key beliefs are nowcontinuously under challenge.

III. CONFl,ICT RESOLUTION ADVOCACYJust as adversarial advrrcacy has evolved out of earlier notions of zealous ad-vocacy, a new conception of advocacy is evolving out of the changing conditionsof legal disputing, and in parlicular, the widespread intoduction of court-

connected and private mediation programs, case management, judicial mediation,and the "vanishing trial-" I shall call this "advocacy as conflict resolution" orconflici resolution advocacy. This does not mean that resolution is the only out-come, but rather that the goal is fair and just resoludon wherever possible. Con-flict resolution advocacy is at the core of the professional identity of the new law-yer. The new lawyer will conceive of her advocacy role more deeply and broadlythan simply fighting on her clients' behalf. This role comprehends both a differ-ert relatioNhip with the client-closer to a working Parrnership-and a differentorientation towards conflict. The new lawyer must help her client engage with theconflict, confronting the strategic and practical realities as well as making a gameplan for victory. The new lawyer can offer her client skills and tools for conflictanalysis, an understanding of how contlict develops and evolves over time, andthe experience of working continuously with disputants on (perhaps similar) dis'putes. Conflict resolution advocacy means working with clients to anticiPate,raise, sfategize, and negotiate over conflict and, if possible, to implement joiltlyagreed outcomes. Ifjointly agreed outcomes a.re not possible, or if they fall shortof client goals, there are other, familiar, rights-based sirategies available thaa canbe pursued either simultaneously or alternalively.Conflict resolution advocacy requires lawyers to modify two of their threekey beliefs, and to extend the third. Il challenges the automatic and "obvious"primacy of rights-based dispute resolution, preferring a more nuanced, multi'prongcd strategic approach to both fighting and settling. Conflict tesoludon advo-cacy understands rights-based shategies as imporlant and useful but rarely exclu-sive tools for engaging vith conflict and seeking solutions. As a result of broa-dening discussions to include nonlegal issues and polential solutions, the role ofthe client in conflict rsolution advcracy becomes more significant in both plan-ning and decision making, modifying the simple notion of the lawyer as the expcnwho is "in charge." This issue is discusscd funher below in relation to law'ycr/client decision-making, and client panicipation in dispute resolutionprocesses, Finally, conflict resolution advocacy dnes not deny or contradict jus-tice as process, but it takes whai lawyers alrcady know atrout the importance ofintegrity in the processes and procedures of conflict resolution and applies thisawareness to private ordering outside the legal system. As a consequence the new

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JOURNAL OF DISPUTE RESOLWION [vol. 2008lawyer will be deeply involved in, and knowledgeable about, the design ofprocesses and procedutes of negotiation, mediation, and other Collaborativeprocesses that protect their clients' interests and promote trust in the developmentof solutions.

IV. CoNFLICT RESoLUTIoN ADvocAcY AND CLIENT LOYALTY\ Thre is no lesscning of the lawyer's responsibility to achieve the best possi-ble outcome for his client in client resolution advocacy. In fact, adyocacy as con-flict resolulion places the constuctive and creative promotion of partisan out-

comes at the center of the advocate's role and sees lhis goal as entirely compatiblewith working with the other side. In fact, this goal can only be achieved by work-ing with the other side. The new lawyer remains just as dedicated to achieving herclients' goals as the warrior or adversarial advocate. What changes is that herprimary skill becomes her effectileness and ability to achieve the best possiblenegotiated settlement, while she remains prepared to liligate if necessary. There isno contradiction between a commitment to explore every Possibility of facilitatingan agreemeDt with the other side and a suong primary loyalty to one's own client'One very experienced lawyer describes this loyalty in the follo*'ing very practical

I think, to be honest, it's natural for an attorney . . . that my best friend inthe room is always going to be my client.aCounsel's loyalty and focus should be on achieving the client's best possibleoutcome(s). As a result, effective family lawy-ers should be able to assue theirclients: "I shall still get the best deal for you."" or as a commercial litigator putit: "I see a completely different form of adYersary process. You call it a media-tion {becausel we're working togcther to come llp with a deal, but we're still ad-venaries-I'm slill trying to get the best possible deal I can."o A contradictiotlbetween client loyalty and creative consnsus building only exists if counsel isconvinced that the only effective way to advarce the client's wishes is by usingrights-based processes. Aside from lhese fairly exceptional caes, the goal of theconflict resolution advocate is to persuade the other side to settle-on her clicnt's

best possible terms.Adversarial advocacy offers no frameworks to counsel to resolve classic di-lemmas such as when and how to settle, or how to balance their own judgmentwith the clients' aspirations. Admitting a need to compromise in any way under-mines the core of zealous advocacy. Conflict resolution adYocacy both anticipatesthese dilemmas and makes them resolvable on a principled basis. Whereas adver-sarial advocacy lends to view settlement as capitulation, conflict rcsolution advo-cacy is committed to evaluating the pros, co[s, and alternatives of any settlement

4. Jufic Macfarleic, Etlcncncet of Collaboratiw I'aw: Prcliminary Rcsuls fnt n lh. Collafu)mtiveLav'lering R.t.orch Projcct, 2004 J. DISP. REsoL I 79, 204.5. td.6. Julic Macf.rlan., CJr llur. Ch0tt|e? A Talz of Ttto Cities and Manduory Coua-Coinacled Media-

rr'on, 2002 J. DrsP. REsoL.24l,307.

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No. tl The Evolution of the New livreroption, which includes an evaluation ofthe legal, cognitive, and emofional dimen-sions because all of these are part of how clients appraise settlement.'

V. FACT GATIIERING AND IINFORMATION IN CONFLICT ITESOLUTIONADVOCACY

The dominant epistemology of litigation is that knowledge and informationhave the sole purpose of advancing the clicnt's legal case. This approach meansthat only information that fits the legal argument is either sought or utilized, andignores other information lhat may be important to realizing the clieot's goals.The adversarial advocate approaches factgathering and information as a comPeti-tive process, with information wilhheld from the ofter side even *here it may beof little or no consequence, and oflen where it would be beneficial in clarifyingthe relative goals and expectaiions ofeach.In a conflict resolution model the purpose and uses ofinformation are unders-tood differently. First, the type of information that may be important is expanded.Tbe involvement of cliens in negotiation and mediation and in planning for tbeseprocesses allows for the discussion ofinformation that may oot have a direct bear-ing on the legal theory of the case-for example, business issues or personal is-sues-bul which may have an importanl impact on the resolution of the conflict.If counsel takes seriously her responsibility to engage the client in the resolutionof the conflict, she will seek out informaiion that could be key to understandinghow to advancc the client's interests and needs, as well as his legal entitlements.Second, conflict resolution advocacy regards information as a sharcd resourcethat may advance all party inlerests. This approach to information shadng re-quires significant reorientation, both conceptual and collegial. For a less aggres-sive and more collaborative approach to information sharilg to work, Iawyersneed to be able to build trusting relationshiPs sith other counsel and other profes-sionals. There is an obvious need for nsrms of reciprocity. Such norms havealways existed in smaller communities where lawyers are accustomed to provid-ing informalion as requesied without forcing their opponent through proceduralhoops. Even where reciprocity is not clearly established, there may be other sta-tegic reasons to send information to the other side. Counsel are accustomed toanalyzing what information they need ftom the otber side and what informationthey are willing to provide to opposing counsel upon request. Effective conflictresolution advocates must in addition consider what information about hcrclient--+oth his needs and his rights-the other side must be aware of if they arelikely to settle, preferably on her client's best possible terms.VI. RE-ENVISIONING OUTCOMES IN CONFLICT RESOLUTION ADVOCACY

Conventionally, potential negotiated outcomes are measured by how closethey come to achieving legal goals and aspirations, framcd within the theory of thecase. Of course, experienced counsel know that in Practicc this is not the onlymexure of success, or even necessarily "success" as the client sees it. Even if?. See thc dctAilcd discussion in Julie Macfadaic, WhJ Do Pcopk S.r/t/, 46 Mcctrl. L.r. 663(2001).

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JOURNAL OF DISPUTE RESOLWION [vol. 2008"winning" is ultimately achieved, it may not be all that was hoped for. Emotionalclosure or business viability and recovery are often pushed further away in litiga-tion. In civil trials, the process of resolution may be prolonged further by the needfor enfbrcement steps af{er securing a favorahle judgment, which may partly ex-plain why in my 1995 Ontario study (matching a control group of litigants whowent to trial with those who mediated their dispute), only 8.5% of trial group liti-gants described themselves as completely satisfied with the outcome of their case(either settled between lhe lawyus or adjudicated).o The most frequently givenreason for a negative or panly negative assessment of outcome in the remaining91.5% (obviously including some litigants who won tleir cases at trial) was theIength of time and tle emolional energy consumexl.'In envisioning and evaluating potential outcomes, conflict resolution advoca-cy will certainly include proximity to an "ideal" (i.e., successful) legal outcome,but many other lactors will also be importaflt. For example, responsible counselwill always consider lhe issue of costs in planning a conflict resolution shategy.Conflict resolution advocates should consider how far any one outcome will meetclient interests. Aside from "winning," these might include. for example, rerogni-tion and acknowledgment, business expansion or solvency, future relationshipsboth domestic and commercial, vindication and justice, emotional closure, andreputalion. These interests have both shorhterm and long-term elements. Theyreflect not only outcome goals but also the importance of procedural justice-feeling listened to, being taken seriously, and being fairly treated. In a conflictresolution model of advocacy, it is not only the final deal that matters but alsohow the client feels about how it was reached, which includes a sense that theoutcome is fair and wise in light of the client's interests and a recognition of thelimits ofrhe system to offer altemative, bettcr solutions.Conflict resolution advocacy is about focusing more of counsel's energy onthe creation of good settlements rather than good positions and developing newknowledge and skills to support this new and enhanced focus of their work. Con- 'flict resolution advocacy is less about aggressive posluring and game playing, andmore about working with the clicnt to diagnose his needs and priorities and stay-ing open to the creation of new pathways to meet these. It does not mean aban-doning rights-bascd advocacy and even rial work in appropriate cases, In factconflict resolution advocacy builds on some hadilional skills and knowledge,notably information assimilation, legal research, effective oral communication,strategic planning, and insider knowledge, which are core elements of effective .trial advocacy. Conflict resolution advocacy takes these familiar tools and aPpliesthem to a newly articulated and more realistic goal: the Pursuit of acceptable, rea-sonable. and durable settlements that meel client inleresls.

VII. PLACINA NEGOTIATION AT T}IE CENTER OF LEGAL PRACTICEWhile ready and able to move to an adjudicated determination in any givencase, conflict resolution advocatcs plan their approach based on one simple and

8. Jt'UE MACFARLANE. COURT.BASED MEDJATION IN CIVIL CASES: AN EYALUATION OF T}IEToRoMo GENERAL DIVISION ADR CENTRE 22 ( I995),9. Id"

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No. ll The Evolution ofthe New Lawterundisputed fact-most cases settle. This rerognition opens up the unpredictableand flexible dimensions of strategic bargaining, focusing counsel less on games-manship around the rules of engagement (the rules of civil procedure), and moreon the management and tactics of negotiation.The relationship betwen time spent on procedural steps such as drafting andfiling pleadings, preparing and bringing motions, and developing negoiiationstrategy and actual negotiation is reversed in a model of conflict resolution advo-cacy. Since, conventioDa-lly, lawyers spend little time on negotiation compared tokking procedural steps,'u this rcversal represenls a significant shifi of time andenergy. Some lawyers already se the time they spend on procedural matters asan aspect of negotiation-in ffecl, softening up and checking out the other side inpreparation for bargaining-but, in this approach, negotiation is a mere sub-set ofprocedural rnaneuvers and not an explicit tactic. In conflict resolution advocacy,the development and implementation of effective Degoliation strategies is movedto the center of what advocates offer their clients.This shift transforms how we think about negotiation into a discrete skill set,rather than regarding it as a subsidiary or a secondary element of other lawyeringpractices. It catapults the self-conscious development of negotiation skills, whichare evaluated by their effectiveness rather than justified by their habitual charac-ter, up the hierarchy of lawyerly skills and capacities. Taking negotiation strategyseriously makes the rouline dynamic of exchanging written offers before "sawingit off in lhe middle" appear inadequate and gauche- Instead, conflict resolutionadvocacy demands that negoliation planning be addressed even in the earlieststages of file development as a pa of the process of canvassing goals, priorities,and alternatives with fte client. An early and explicit focus on the Potential fornegotiated settlement requires the holistic framing of the problem rather than theselective use of information in a way that narows the case to its generic legalissues. This may also shift the planning focus away from procedural sleps anddeadlines and towards the development of a complete strategy for file manage-ment, which is perhaps worked out withifl a team or between tbose in a firm'slitigation and c;rporate departments.rr As one lawyer, whose practice was dra-matically altered by the introduction of rnandatory civil mediation, reflected:

[M]y practice is more and more on the phone talking about strategy.[.ess and less do I ever mention lhe words civil procedure.''. Intimidation, aggrcssivc positionality, and secrecy are not helpful in trying lobuild consensus. Summarized by one lawyer as "lose the bark keep the bite,""prefened strategies are those which persuade the olher side firsl to listen to you

and then to (hopefully) accede or agree with you, Effective negotiators ask ques-tions that reveal information, rathcr than holding fonh themselves. They have ascnse not only ofwhen to b accommodating but also of whcn to be tough in orderIO. S.f HERBERT M, KRTI-ZER. LFI'S MAKE A DEAL: UNDERSTANDING THE NEEONAflON PRCJCSSIN ORDINARY IfiCA.NON 130.34 (I99I). Sc' a,JO JUUE MACFARLANE' THE IEW LAIVYERI HOW

SETTLEMENT Is TRANSFORMING THE PNACTICE OF T.{W Ch. 3(2008).I I . M8cfarlanc, $.Irro nole 6, at 298.t2. td.13. C. G\tiuatd, PrcNdnB firr Mediation and NeSorradot, 37 PRAcrlcAL LAwYER 65 ( 1991 ).

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JOURNAL AF DISPUTE RESOLUTION [VoI.20080to protect fteir ctients' interests, working incrementally to creale trust and en-hanced solutions. They understand and develop norms of reciprocity with theother side, beginning with establishing comfort and rapport. This process requiresgood interpersonal and communication skills, including the ability to Pul the otherside at ease, demonstrate respect and perhaps even empathy, and, most challen-gingly, create a shared snse oftrust. The development of trust is key to exploringenhanced mutual solutions, and it requires effective explanation, persuasion, andpersonal authcnticity:

I want to persuade and get the other party to understand what my clientwanls, so there's that part of the persuasion, but it's more bascd on build-ing a foundation first, the more they understand, the more they hust thenthe more likely they are able to understand why we think we want a cer-tain thing.raConflict resolution advocacy also requires a cerlain amount of new know-

ledge, which can enhance the breadth and depth of lhe negotiator's skills. Forexample, skillful negotiators understand the distinctive dynamics of both distribu-tive (divide up the pie) and integrative (expand the pie, then divide it) negoiiationsas well as the need to move between these two modes depending on the type andstage of negotiation. Understanding the dynamics in negotiation of both valueclaiming-where one establishes and holds to a "bottom line" or core componentsof an acceptable solution----and value creating-where one explores the additionalbenefits that the parties rnight jointly develop and distribute-creates balance andprovides alternatives when one strategy gets "stuck." Lawyers who understandthese diffcrent bargaining approaches can move with ease betwcen them as cir-cumstances require, and as a result they are proactive in shaping negotiation out-comes-for example by using an expanded rangc of oplions to identify prioritiesand negotiate trade-offs. Experienced negoliators are also sensitive to the impor-tance of identifying and allowing for cultural differences in both the framing andthe resolution of conflict, recognizing that disputants often need to relate theprocess and the outcome to their cultural (familial, community, organizational'ethnic) expoctations and Preferences.Lawyers who are experienced in settlement adYocacy settings identiff a num-ber of discrete negotiation skills-implicating both cognilive and emotional abili-ties and qualitieg-which enable them to be most effcctive' These include prepar-ing an effective opening statemenl in negotiation or mediation, which adopts afirm yet not overly positional tone; matching the appropriate informal process tothe case; displaying confidencs and openness; and thinking outside the "bo{' ofconventional, legal solutions in developing creative problem-solving skills. Onefrequently voiced observation is the importance of being able to conceptualize andunderstand the dispute from the perspettiYe of the other side. Critical to beingable to persuade the other side to settle on your client's best terms is an under'standing of what the oaher side needs in order to be able to settle. The belief thatthe client's best interests can only be achieved if the interests of the other side arelaken into account is a central prcmise of the principled bargaining approach po-14. MACFARL Nq r!y'ra notc I0,8t I |2.

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No. ll The Evolution of tlre New Lavyer l1pularized by Roger Fisher and Eill Ury and is widely identified in research onlawyer's negotiating techniques.'" One experienced litigator offers the followingdcscription:

Probably the biggest change I made was really thinking about , . . the op-posing party's profile and really making an effort to put myself in his/hershocs. . . . I do that principally as I strategize the case.'oThe practical importance of this approach becomes clearer when lawyers are

focused on negotiation rather than trial. As one liiigator put it, "You don't worryabout the other side as much at a t al because lhey're the other side. When you'reworking towards a consensus-then it matters.""

VIII. REVTSMNG THE THREE KEY BELIEFSThe model of legal negotiations described here uanslatcs into practice manyof the concepts ofconflict advocacy discussed above. Consequentially it inevita-bly challenges the three key beliefs in many of the same ways and for the samereasons as conflict tesolution advocacy. Both approaches question the assumptionthat all conflicts necessarily implicate rigbts. The claim of "principle" is attachedto many disputes which, in their origins at least, appear to be wholly or primarilyattached to the sharing of resources, including property, business interests or timewith children, and implicaring power, status, material wealth, repulation and otherdesired social symbols. While a principled argumenl can be-and usually is-

constructed for each side's "moral" position, this may miss both the core of whatthe conflict is and potenrial solutions or accommodations. In addition, both con-flict resolution advocacy and a model of earlier, "interests-aware" legal negotia-tions approach rights disputes differently than the traditional model. Both modelsquestion whether the only and inevitable place to resolve rights conflicts is inadjudication. Both understand rights and entitlements to be a part of a bargainingframework which can, if apprbpriate, include firm and explicit norm-based thre- .sholds; for example agreeing in advancc that payments shall be in line with orabove child support guidelines, following convenlions for interest percentages instructufed settlements, or guaranteeing other statutory rights and Prol.ections.Interests bargaining and negotiation over rights entitlements can and must co-exist.The model of legal negotiations described here also makes clearer the limita-tions of the core belief in justica-as-process discusscd earlier. The practical suc-cess of eady "interests-aware" legal ncgotiations, mediation, and other settlementprocesses belies the assumption that justice can only be achieved ftom dutifullyjumping through the (increasingly expensive) hooPs oflegal process. Lawyers are15. S'e a.'eftII,} R(rcER FTSHER, WILUAM URY. & BRUCE PATTON, GETNNC TO YES: NEGOTIATINGAGREEMENT WrrHouT GrvrNG IN (2d ed. l99l). As wcll, the strateSic irnporlancc of considcdng lhcinlcrds of thc othcr sidc it identified by Matht, McEwcn, snd Maimtn .s a convntion in divortcadvocacy. LYNN MATHER, CRAI0 A. McEwEll & R|CHARD J. MAIMAN, DtvoRcE LA\YYERS AT

WORK: VARIMES OF PROTESSIONAUSM IN PRACTICE 1 15 (2OOI }.16. Julic MacfadarE, Jnp/a notc 6, at298.17. Id. rt297.

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l2 JOURNAL OF DISPUTE RESOLUTION IVol. 2008right to discourage their clients from assuming that they have a lock on judge-dispensed 'Justice," but their substitution of the machinations of legal process for"justice" cannot feel satisfactory for many clients, especially (as procedural justiceresearch shows us) where they do not directly participate in the process thern-selves. Clients do not necessarily share their lawyers' belief in the formal legalsyslem as a fair process. What is more, the bottom line for many clients is prac-tical solutions rather than an elusive and absuact sense of'Justice." In these casesit may be important for the clients themselves to create their own seose of "jus-tice" that enables them to live with the outcomes they choose, both practically andemotionally. They may need to participate in shaping different processes that givethem a voice and the chance to be listened to and taken seriously. These sameclients may also be unprepared or unwilling to hand over conEol and ownership oftheir dispute to their "lawyer-in-charge."

D(. THE LAWYER./CLIENT ITELANONSHIP: A NEW WORKING' PARTNERSHIPThe changing conditions of legal practice and legal disputing elso require thedevelopment of a new model for a working partnership between lawyer and client,

one which is appropriate for the conditions oftwenty-first century consumer needsand demands. The haditional assumptions of the lawyer-client relationship, in-cluding owncrship_-of the conflict, control and decision making, and responsibilityand participation,'" are under scrutiny. The third of the thre key beliefs-"lawyer-in-charge"-is challenged by the widespread decline in professional defe-rencere and further problematized by changes in disputing procedures' The tradi-tional assumptions of control and hierarchy are challenged when counsel andclient are obliged to participate together in settlement-oriented processes' Theseprocedural changes seem to be in tune with public attitudes, especially in the busi-ness community, about adapting legal processes to suit their Particular ends ratherthan accepting the taditional model of the autonomous legal professional. Theprohibitive cost of legal proceedings furthcr encourages clients to ask questionsabout thefu lawyer's decisions over dispute resolution strategy- The days ofhand-ing over a file to a lawyer who makes the assurance "trust me, I'll bandle it" ap-pear to be siBnificantly over, for botb individua[ and corporate clients.I shall focus here on two related aspects of the lawyer-client relationshipwhich highlight the impact of these changes, and illustrate some of the philosoph-ical and practical "terms" of a new relationship. These are (l) the negotiation ofdecision making and control between Iawyer and client; and (2) the impact of18. On issue of lawycr conkol lce the classic work DouGLAs E. RoSENBAI- LAWYER AND CUENT :'w8o's rN CHARGP? (1974). Sec also Carl l. Hosti.*,n, w. Don't Cat. About What Hun.n d' w.only Care Afumt What Is GoinS To Hdwen: Iawlcr-Cli.tu N.Sotiatior$ of R?dliry' 26 SoctAL PRoBs.

599 (1979) (exrnining Elalionships betwcen legal clinic la\r1c6 snd d|.ir clienls).19. Oftcn refercnced to thc dcvcloprnent of the world Wide wcb 8nd incrEasing .-rsc of lcccst toinfonnation fonnerly hcld by pmfcssionols: J., ..8., Stuan Henshdl, Ii. CoMsuftar Madifesto:Em!tuwering Con n!,nitiet of Consurrl4fi Thiough lha rtrttmrt, FlRsr MoNDAY isruc 5,ittp//fiFtmonday.or8/ilsuevi$iuc5-5ftcnshalvindcx.html. A similar phenorncion is rvidcnt in lhcchsnging rclalionrhip bcl\recn doctors and thcir paticnts. Se?' 48, rhe cla.stic wotk of Thonas s.Szrsz & Marc Holender, ,{ Ctntrihution to thc Philosophy of Mcdbirtc : Thc Basic Mdck oI lheDocTor-Patieil Ralotlonsrlp,9? ARCHIVES oF IMTERNAL MEDICINE 585 (1956).

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FL cn rs13 Cddo:{llzodir7filna t5 hi|.t,ADlG t:t:6 A}l

The Evolution ofthe New lav"yero. llclient participation in the settlement process. Both are key elementsworking pannership between lawyer and client.

X. DECISION MAKINC AND CONTROL"ll want to bel in the mb at all times."2o

Reframing the lawyer-client relationship as a working parlnership has pro-found implications for the balance of power in lawyer-client relationships. Apartnership gives the client far greater power not only to review and critique decisions but also 10 participate in making them. This shift of power also requiresclients to take far greater responsibility for choices and outcomes. An explicittransfer of responsibility is especially rnarked where clients directly participate inprocess and decision making as they do, for example, in Collaborative lawyering:

The overall responsibilily has shifted to the clients. We tell the clientsthey are responsible for the problem. We are going to help you to fix it.We will give you the mechanism, the procedure for resolving it. But it'snot our problcm. Before, I.think too many lawyers would make theirclients' problems their own.''In Collaborative Law, clients are expected to take an active part in planning,analysis, and the formulation of strategy. Collaborative lawyers expect lo havefrank conversations with their clients about cboices of approach, tactics, and op-tions. Similar adjustments in the participation of the client in planning and deci-sion-making occur whcte lawyers find themselves in mandatory settlementprocesses that require the participation of their client. The contast with the "oldsiyle" is made clar in this interview with a younger lawyel:Interviewee: Counsel who practilc]ed for many years under lhe old slyle. . . I think that they had a stronger sense of their lead role . . . of theirrole in making all decisions on how a case should be managed.Interviewer: Rather than sharing those decisions with the client?Interviewee: Rather than gctting the client as involved as thcy are in-volved under mandatory mcdiation."When the development of strategy and the conduct of negotiations are no

longer under the sole control of the lawyer, the exlent and type of information thatcounsel ne4ds from her client are also quite different than in the traditional para-digm. Instead of filing the pleadings and waiting for the legal process to grind20. MACFARLANE rxpld no{c 10, at l3E.2I, JUUE MACFARIA}.IE THE EMERGINc PHENOMENON OF COLI,{BORATIVE FAMILY I.AW (CFL)] A

QuAl-fTATwE STUDY oF CFL CASES 43, Caiadt 2r'J].5, dvailable alhttpy'/camda jusl ic..gc..i/cn g/pilpsd-rpad/rcp-r8pr2005- I 2m5-l.dt22. MACFARLAI\E, $ly'rd notc I 0, at | 40 ,

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JOURNAL OF DISPUTE RESOLUTION [Vol. 2008along, mandatory settlement meetings force Iawyers to ready their case for negoti-ation at an early stage. Practically speaking, they need significant input from theirclients in order to do this effeclively. In an(icipation of early mediation, there aremany quesdons that the lawyer now needs to ask at the planning stage-luestionsthat only the client can answer and that are not necessarily related to making thelegal case. If decision making is to be undertaken jointly, therc should be no sur-prises for the lawyer in a future meeting, Collaborative negotiation, or mediation:

I ask them [the client] "what's really going on in the dispule?" Ifthey're .the defendant, what they really think the reason for the dispute is? Ifthey're the plaintiff, what they think the reason is that the defendaDt isn'tdoing what they want them to do? What's the real reason behind it--dothey have finaniial difficulties, that type of thing.aFor instance, in commercial areas you want to know about the businessrelationship between the two panies-how long it's been going on, whatfuture opportunities there are together, whether therc is an interest inkeeping the relatiooship together for long-term purposes or other busi-' ness opportunities and so you want to know a lot more sbout thal thanyou would if you werc strictly looking at that case at hand attd the legalrights in the dispute issue."The diffetent type and volume of information shared between lawyer andclient in this model is not only the result of the lawyer needing more informationand asking more questions. Expanding the number of issues that will be consi-

dered is a natural consequence of engaging the clicnt more completely in the de-velopment of the case and in the dispute resolutioo strategy. Ifhe is directly in-volved in planning for mediation, for example, a business client is likely to pro-vide additional information on business nceds and goals, both long"term andshort-term, which can be effectively incorporated into planning a strategy for ne-gotiation. Issues that would not be apparent otherwise may surface. Inslead ofremoving emotional and psychological issues from the negotiation, lhe inclusionof clients in planning may mean that important and otherwise unspoken bariers tosettlement can be raised and discussed.Not only does counsel need different and expanded information from herclient in order to make effective use of early settlement processes, sbe may alsofind herself relying to a far greater degree on what her client tells her. Whereisdiscoveries and subsequent lawyer-to-lawyer negoliation allow counsel to verifywhat she has bern to'ld by her client and galher appropriate supporting evidencefor a claim, eady negotiation or mediation implies a greater degree of reliance onthe client's informalion and a relatively lesser degree of rcliance on legal argu-ments in the prcparation ofthe case.

Reconceiving lawyer-client relations in this way means that much of theweight of both moral and practical responsibility shifts from tbe lawyer to herclient. Depending on the extent to which counsel embraces a working psrtnershiP23. Id- rt140.24. td_

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No. ll The Evolution of the New lawyer . 15with her client, this shift may bc a significant one or it may be more marginal-but it will occur in some way. This rebalancing relieves a significant source ofstress for many lawycrs, who lestify to the impact of stress in their working livesand, in particular, to the toll exacted by liligation: "I hated taking ftese thingshome with me. I really worried about the outcomes. I would be up to 2 a.m. pre-paring."'Not all lawyers welcome the opponunity to relinquish their customary ap-proach to file management. Some find setting aside their conventional assump-tioos about control ar unsettling and disconcerting experience. Rclying on theclient for infomation prior to a Collaborative negotiation or mediation may benerve-racking and is certainly counterintuitive for lawyers accustomed to the law-yer-in-charge model. The extent of this anxiety among lawyers is illustrated by itsprevalencc among even $ose Collaborative lawyers vho bave explicitly opted fora settlement-only approach. Even where lawyers are committed to workirg withtheir clients in a working partnership, some of thc consequences may prove to beless than welcome-for exanrple, where lheir clients bcome sufficiently self-confident that they meet without their lawyers and make a "kitchen-table agree-ment" or wherc the client is so "empowered" that shc questions the final bill."A similar ambivalence over the reality of sharing conuol is sometimes voicedby clients" Some clients resist participating in planning or implementing jointstrategies, prefening to hand over their dispute to their lawyer in a more radition-al fashion and to give him or her contol over the file. Clients usually seek clearguidance and advice from their lawyen, even if they are comfonable with lakingfinal responsibility for decision-making and choice. In some lawyer-client rela-tionships the client is sufficiently experienced that sh needs little more than thelawyer's opinion before making a decision. ln others the client needs "educating'in order to be able to make an informed choice. A good example of this is thedegree to vhich previously financiatty inexperienced partners in diYorce (often thewife) are asked to consider the data and make their own decisions about financialsupport. One family client described a conversation in which her lawyer cx-plained a hnancial issue and then asked her if she understood: "I said no, [I don't],but I trust you."In this instance her lawyer-a Collaborative lawyer-was not willing to ac-cept her abdication of responsibility and pressed her funher.He replied, "No, K., you need to understand this issue to makc a decisionabout it." -So he explained it again and asked me what I thought.zTThis client acknowledged that this was pan of the bargain she understood be-tween herself and her lawyer-one which was explicitly des*ibed in terms of apannership. It is easy to imagine another client resisting or rejecting this ap-proach.An important example ofcircumstances in which the lawyer is responsible forthe "education" of the client to enable informed decision-making relates to choic-es over different dispute resolution prcrcesses. In an authentic working partnershipbctween lawyer and client, consideration of dispute resolution options must go25. /d at l4l. This is conecl26. Scr the discu&sion in id. anl4l-42.27. Id r.142.

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tsrk(tqF]! Cdtd d .vll|!trr 5:47SEl ls Eir.c ff2aA lJ?lfl Aril

JOURNAL OF DISPWE RESOLWION [Vol. 20086further than the lawyer simply recommending her preference for one Particularcourse. Counsel sho[ld present a range of options to her client rather than propos-ing one approach-her favorite or prefened process. A willingness lo expose theclient to the possibility of a range of dispute resolution options is especially im-portant given the weight that clients often attach to their lawyer's personal opi-nions, Where a lawyer is positive or negative about a paflicular procedure, it isextrernely influential in determining the client's own views. Ifa process option iseilher not discussed. or dismissed with minimal explanation, individual clicnts andone-shotters,28 in particular, may not have the experience to press further or askquestions and are likely to simply accede to their lawycr's preference. Researchshows that lawyus who are positive about mediation seem to have clients whofeel positive about mediation, and, similarly, lawyers who are negative and dis-missive about mediation tend to engendei the sime attitude in their 'clients.?eEqually, offering the client a single option or course of action and asking them to"decide" is not authentic shared decision making, whether this is righs-basedadjudicarion or an alternative.sIn relation to choices about dispute resolution processes, as well as other legaland procedural questions, counsel has access to more reliable, technical informa-tion than her client and can present it in such a way as to make lhe client's deci-sion inevitable. The balance between client autonomy and lawyer judgment (orpaternalism) is a delicate and difficult one and always depends on the needs of theindividual client. If a client is to participate authentically in decision making' thechoices available to her ought not be limited without her explicit and informedconsent. In a working partnership, the choices made by the client may not alwaysjibe perfectly wilh the lawyer's own preferences, but, without real choices, it can-not be a real partnership. Once the client is offered choices and has been fullybriefed on both their implications and the counsel's own preferences, the lawycrneds to be able to step back and let the clienl decide.The interaction of information and choice goes to the heart ofthe changes thatare taking place in the lawyer-client relationship. This can be a difficult transitionfor both lawyers and clients habituated to the "old" approach' From law schoolon, lawyers are trained to take responsibility for directing thefu clients towardswhat they believe to be "best" for rhem-in this way the lawyer-in-charge belief isseeded and sustained. Finding the balance between continuing to offer exper'tise-which is, after all, what the client is paying for-and respecting the autonomy of clients in setting their goals and determining their best interests is complexand challenging. It is further confounded when the clienl directly participates indispute resolution efforts such as negotiation, mdiation' or judicial settlementconferencins.

28. Sa B.n mtb Mttc Calarlcr, 'y,t) ri. "Har'cs" Corn Out Ah.ad: S4.cltlatins on thc Limits ofl4pl Ch!n$.,9 L^w & Soc'Y REv. 95 ( l9?4) (crpl.inirg thc "onc-sholtd" cotctpl).29, JULIE MACFARL"ANE & MICHAELA KEET, ITARNING FROM EXPERIENCT: AN EVALUATION OF THESAsKATcHEwAI.i QIIEEN'S BENCH MANDATORY MEDIA'I.ION PRMRAM 2+25 (2003).30. For emmple, tle fact that all but one rEmbi of the family bar in Mcdicinc Hat' Albcrta' hsveadopted a coilaborativc approach lo famity law raisas a question orcl S.ouinc client choiccs'Mai:relLaN4 ,rl2ra note t0, at 144. For firnher discussion ofclicflt dccision'tuking in collaborativcIaw. see Macffilanc, Jrrrru notc 4, al 210-

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titc (idql! ftd.do 4lu:dls{7mlM Lr rrrEl6/r.z$t l:l7:@ riM

No. ll The Evolution ofthe New LawyerXI. CLIENT PAR'IICIPATION

It completely caught me off guard at first. The first few mediations, Ihadn't had any mediation imining. My only training was the general att;tude in the profession that this is a lot of horse crap and I had settlementshit me between the eyes and I couldn't believe my clienls sold out on methe wav thev did. I was concerned that I had a serious client-controlproble;.3r -This lawyer is describing his early experiences with bringing a client to arnediation session. Having his clients present redirected the locus of control in away he did not expet and did not plan for. In informal settlement procedures,lawyers have far less conrol over the proceedings and need to be able to under-stand how their client will behave and how to relate to hirn throughout theprocess. The new lawyer needs to not only be able to minimize any negative con-

sequences of the client being present but also to maximize the benefits.Whether in a Collaborative four-way meeting, a mandatory mediation, or ajudge-directed settlement conference, the presence of the client changes the prac-tical dynamics ofdecision making. Instead ofthe lawyer bringing a proposal backto the client from the other side and presenting it to the client with her own over-lay of analysis and recommendations, decisions in mediation may be made on thespot as new offers emerge or solutions develop.The past thirty years have seen the introduction of a range of dispute resolu-tion processes that either mandate or strongly encourage client participation. Jac-quie Nolan-Haley suggests that the strength of the tend towards client participa-tion changos lhe questions about the involvement of clients from "whethef' to"how." Shc writes, "[t]he critical decision-making quesrions in mcdiation areconcerned not with the extent to which clients should be allowed to Danicipate,but rather the manner in which lawyers should be involved."32 Some migt i se"such an assessment as premature, especially in light of the tactics adopted by somelawyen aimed at ensuring that the participalion of their clients remains minimaland tightly controlled (see the discussion below), but it presages a change in prac-tice that has fundamental implications for the balance of power between lawyerand client.Whatever the extent of the clients' rolc in practice," the cooPtation of lheclient as a player in negotiations consttains the lawyer's autonomy to play theconflict out relying solely on his own strategies. Similarly, Collaborative andCooperative lawyering protocols prornote negotiation in four-way gatherings thatinclude the cliertts, Once counsel has recovered fiom the cultue shock of sharingspace in a negotiation setling with his client, the results can bc very positive. Onelawyer desribed the contribution made to negotiation by clients as:

31. Macferhnc, srpra norc 6, at 301.32. Jacquctine M. Nolan-Halcy, Lo*yen, Cli1^ts, and MeAaioL 73 NoTRE DAVE L REv. 1369'l3?9 0998).33. S?., aa., Nancy A. Wejf,h, The Thirning Vis m oJ Self-Determindtiott hr Coun-CoM.cud Medio-turn: mc Inevitablc Pricc of ltrslitrli!>nalkation2.6 HARY. NmoT. L. REv. I Oml).

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l8 JOURNAL OF DISPUTE RESOLUTION [Vol. 2008[T]he intangibles that a lawyer can't bring. Like vhat was said at a par-ticular meeting when the deal was done or what everybody's perceptionswere of what was going to transpire. So that you can sort of retrace thechain of events that lead to the dispute and see where everybody's expec-tarions have fallen short, notjust the claimant's expectations.'"Lavyers' attitudes towards preparing for, and encouraging, client participa-tion in dispute processes are in many ways a litmus test for how far they are will-i]lg to share conkol and decision making more broadly in a partnership-


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No. Il The Evolution ofthe New Lawyer l9Nancy Welsh argues that there is significant evidence of the assimilation ofcourt-connected mediation (where lawyers are customarily required to attend with

their clients) into a model of adversarial litigadon practice. She writes that"[c]oun-connected mediation of non-family civil cases is developing an uncannyresemblance to tbe judicially-hosted settlement conference," hallmarks of whichare a lack of dircct client involvement and a focus on the legal arguments and theirrelative merits.se Unless both lawyer and client embrace a new parmership model,new processes that are inclusive of clients will actually look and function in a verysimilar manner to traditional ones. Some clients complain that their lawyers oftenfail to prepare them fully, or to consult them on how to use the process effectively.There is also some evidence *rat some clients are exuemely dissatisfied with be-ing excluded or silenced by their lawyers in mediation. Client pafticipants some-times note that in fact they are more solution focused and less emotional and rigidthan their lawyers.4The greater the experience of counsel with senlement processes that includethe client, the more open they appear to be to accept client pa icipation. Theselawyers also regard effons to exclude or silence clients as couflter-productive:

You can see some lawyers come in and lhey do['t let lhe clients talk,they read the brief, they dominate the discussion, lhey're trying to pushthe mediator. And when that happens I go okay, we're not going any-whcre, fine. . . . I lhink it's too bad generally because it robs the processof much of is practical value when you, do that, because it controls theunderstanding of the clients loo heavily."'Increasing confidence with working with clients in settlement processes also

sems to engender a different attitude towards the potential risks of the client"speaking out of turn":I don't see the harm in it, if my clicnt says off the record "so you thinkthose things we delivered didn't work?," I don't really see that as reallyhurling me because probably my client's going to haye to say that on dis-covery, or it's going to be proven out one way or another. Soif myclientsays that in those circumstances, I don't think you're giving much away.It's going to come out anyway and, quite frankly, sometimes showingftat bit of weakncss is worthwhile if the object is to settle this. Some-body's got to give something.a2These lawyers see the potential for the client to play a highly practical role inproposing and testing possible solutions. A working partnership between lawyer

and client aims to produce superior solutions--{hat is, superior to those solutionsnegoiiated privately by lawyers or imposed by ajudge. Involving clients in ngG'

39. Nancy A. welrh, Jr.prd nolc 33, at 25. Wclsh ffgus that tfus is the prjcc ihar h&! bcn Pdd forlhe legitimacy bought wirh th. instilutionsli?alion of rnediation wifiin lhc court s)aslcttl,10. se?, ..8,, MACFARLANE, rnirrr note 34, A! 55: MACFARLANE & IGET, SuPm .wtc 29' ar24'26.4l . MacfArlsn, rr.prd nole 6, at 274.42. Id

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20 JOURNAL OF DISPWE RESOLUTION [Vo|.2008tiation and mediation processes can significantly advance this goal.a3 Face-to-faceinteraction allows parties in both domestic and commercial disputes to exploretheir understanding of what feels fair and realistic and to refine details lhat mightotherwise follow a standard or assumed paih. There is room for "honest assess-ments of the big picture."of There is the potential for value-added outcomes thatinclude creative substantive dimensions not forthcoming in other fora, as well assecondary benefits such as enhanced communication and relationships. The newlawyer needs to take seriously the participation of their clients in dispute resolu-tion processes and to work on construclively managing the consequences of thischange, as well as their anxiety about it.

. XII. THE FTITURE FOR THE NEW LAWYERIn this paper I have presented some modcls for a modified client service mod-

el for the new lawyer who is responsive to the changing conditions of Iegal disput-ing as we enter he twenty-first century. These ideas are not uncontentious, andsome lawyers will resist them. Resistance to change is natual and is likely to beespecially prevalent where the stakes are high-and law is an elite profession.Howevcr the landscape of legal disputing has changed dramatically' and this isour present reality. As William Felstiner points out, "Change and resistance areinextricably tied together in an oppositional tension where the weight shifts grad-uallv from one to the other, even shifts backwards at times, but in the long runruns in the direction of change."as It might be wise for the profession to get readyfor the pace of change lo sped up. What has changed already will not changeback. And there is much more change on the horizon as the basis for resistance isincreasingly eroded. What is more, evolution and adjustment to change are thehallmarks of a vibrant profession.The compound effect of the economic and structural changes that have oc-curred over the last thirty years has been to greally increase (he likelihood ofyoung lawyers practicing in larger firms, in a specialized area, and lor corporateclients. This effect, in tum, has turned up the comPtitive heat in thc larger barassociations, with increasingly adversarial aPproaches to advocacy becomingassociated with big firm commercial practice. These changes are significant forhow young lawyers, in particular, understand the core values and goals of lheprofession that they are entedng. Since large-firm corporate/commercial praclicegenerally garners the largest fees, the highest salaries, and most prestige, thesehighly adversarial lawyers have become role models for mary young lawyers.Ask a class of taw students whom they regard as a role model and what rhey asso-ciate with "success" in legal practice, and a few dissenters aside, you will hear adiscussion focused generally on aggressively self-confident personalities, self-promotion, adversarial behavior, high salaries, and high-Prolile cases and cliens'

43. S?., ..&, MACFARL,$E & K.EEI, Jt y'rd nolc 29, at 12-14; ond Bobbi McAdoo" A Rcpn lo lhz,Mintlcsota $rprcna Cour: Th. Inpoct ol Rule 114 on Civil LitiSation Pndic. in MiMet


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No. 1l The Evohttion of the New LawyerYet the rise of adversarialism and an inreasing focus on competitive big-firmpractice is entirely at odds vith many of tle most significant changcs that are

occurring in legal practice-namely, the unmistakable shift away from t als andtowards settlement processes that rest on less adversarial norms. Tbese processesrequire the development of both a skill set and a mindset that, while building ontraditional approaches to lawyering, have many distinctive and flovel qualities.The most successful lawyers of the next century will be practical prcblem solyers,creative and strategic thinkers, excellent communicators, persuasive and skillfulnegotiators, who are atrle and willing to work in a new type of professional part-nership with their clients. Many lawyers have lold me $at lhis modified approachto legal practice resonates with their own changing norms and habib of praclice,and fits bener with their personal value systems than the old warior model.These are fhe new lawyers, who are competent and competitive in the ncw condi-tions of legal practice, and tnarket forces will ensure lheir rumbers will only in-crease.There will not be just one type of new lawyer. In fact, diversity rather thanconformity is embedded in the concept of the new lawyer. There is a need fordiversity of lawyers and lawyer styles to meet different client needs. There is alsothe realization that no one process of dispute rcsolution can be appropriate for allconllicts and that many different options should be contemplaled and assessed bylawyer and client together. There will also, ofcourse, continue to be many differ-enl arenas of professional practice for lawyers, but each practice setting will needa plan for the future that embraces change and anticipates more to come. Whilesome lawyers may choose to prefer, for example, Collaborative family law prac-tice on Main Street over corporate commercial work on Wall Shet (and viceversa), neither of these worlds can escape the impact of the other, and both are apart of the future of legal practice. Mandatory rnediation and case rnanagementapply similarly to commercial litigation as they do to small claims or family mat-ters. Corporate and institutional clients have just as many reasons to prefer cost-effective scttlements as a personal client on a limited budget. Both wall Stre.tand Main Street firms need a business model that enables lhem to stay competitivein an era of paralegals, in-house counsel, and other sperialists. Every member ofthe legal profession is affected by negative public attitudcs towalds lawyers andjustice systems, and they must be ready to take on this challenge by listening toclients, making changes, and promoting the values of professionalism and intcgri-tv, There is an as yet unresolved normative tension between economic andbroader cultural (procedural and social) changes facing the legal profession. Thistension necessitates a debate over the values and norms of the Profession that isunafraid to open up entrenched, even sacred, beliefs in order to develop new-appropriate, contemporary, and responsive-models of professional identity'There are expressions of ambivalence, dissatisfacrion, and incompleteness every-where among new lawyerc entering the profession. This is especially apparent inrelation to key aspecs of the lawyering role that have historically enjoyed faidystable norms and pattems of behavior-for example, clie[t advocacy and law-yer/client relationships. Lawyers must adjust these and other core characteristicsof the lawyering role to accommodate new conditions and exPectations,A coherent professional identity for lawyers requires an integration of thesechanges into their values, behaviors, and goals for their future careers. Satisfid

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22 JOURNALOF DISPUTE RESOLUTION [Vo1.2008and fulfilled professionals are those who possess a clear sense of professionalidentity and purpose. This is a worthy goal for both new and older mcrnbers ofthe profession in these times of change. The emerging model of the new lawyeroffers present and future members of the profession the philosophical and practic-al framework for a renewed sense of focus, commitment, and satisfaction'