As a lawyer and mediator there are always on the web some great online resouces to consider.
Some of the best mediation blogs include Settle It Now and Mediation Channel.
Also on the blogs is respected mediator, Amanda Bucklow who also identifies on her blog that she recommends reading The New Lawyer: How Settlement is Transforming the Practice of Law by Julie Macfarlane.
As the preamble to this book observes, the image of the adversarial "client warrior" dominates historical notions of the lawyer. Indeed, a zealous commitment to client advocacy remains one of the core norms of the legal model.
There is something quite macho about being an aggressive lawyer. The question is - Is this effective?
However, structural changes, both in the justice system and the legal profession itself - in particular the shift towards conflict resolution rather than protracted litigation - have rendered the "warrior" notion obsolete.
The new lawyer's skills go beyond court battles to encompass negotiation, mediation, and restorative justice initiatives.
It may be desirable that the end of this warrior type of lawyer exists but sadly many lawyers I deal with continue to take an adverserial approach.
So if I can give my take on the trends in employment law and elsewhere which underpin the hopeful ending of this warrior type lawyer.
1 The overwhelming failure of litigation.Recently I was doing some mediation training for lawyers and one leading lawyer told me that nearly every Claimant that had gone through the litigation process did not have a good psychologoical outcome. In other words the money did not adequately compensate for the stress and trauma of going through litigation. As a lawyer I owe a duty to my client to get the possible outcome including to the client's psychological welfare.
2 The costs of litigation. Litigation is expensive. In my capacity as lawyer I advise my clients to where possible settle cases quickly and on as favorable terms as possible to avoid this expense.
3 Social media and competition is influencing parties and making them more accountable. In a more competitive world parties cannot indulge in a dispute. Litigation can hurt reputation that can easily appear online. Clients really do have better things to do than spend money on lawyers and mediators.
As a lawyer, how can I help manifest change in both my client's and opponent's behaviour quicker?
1 You identify precisely what the client is looking for. As a consequence when the client is saying something to me I am looking for what precisely he or she is looking for. When the client says she wants to sue the organisation, why is she looking to sue? What exactly is she looking to get out the process? Is there something else that she fundamentally needs which is not present within the litigation process?
2 You encourage the clients to tell you their story, In my experience in every dispute there is a story, a pattern, a theme waiting to come out. I want to hear it. From this a possible solution will emerge.
3 You use different methods of settlement. Within an employment dispute you can offer face to meetings, pre-claim concilation or mediation. You can avoid hostile use of language in correspondence and distinguish between individual's actions and individuals themselves.This gives more opportunities to reach settlement.
4 You can be more open about weaknesses and vulnerabities in your case. A dual purpose is done by taking this approch. It sends a message to the other side that you are serious, you acknowledge that in any case that there are strengths and weaknesses and you are ready to deal with them. It also communicates to the client to be aware of the risks of litigation and reminds everyone what is at stake. You are not caving in or being weak. Frankly you are advocating in a more effective and influential way.
Justin Patten, Lawyer