Mannered examples of an international community

ThE American Bar Association’s House of Delegates, in its Resolution 108, reaffirmed “the principle of civility as a foundation for democracy and the rule of law.” The resolution continues: “When dealing with the public as well as one another, lawyers should set a high standard for civil discourse as an example for others in resolving differences constructively and without disparagement of others.” Further provisions encouraged promotion of more civil and deliberative public discourse in political activities and government.

This was the subject of much discussion at last month’s annual ABA Dispute Resolution Section Conference in Washington DC, with 1,000-plus global delegates. That lawyers should be both concerned about, and seeking to take a lead in, how to restore civility in public discourse was striking in itself.

I wondered about the possibility of a joint resolution in similar terms by the Law Society of Scotland and the Faculty of Advocates. The timing would be right. What an opportunity for the legal profession to show leadership when, for many, the profession may seem to have lost its way in civic Scotland.

At the conference, I participated with an international seminar panel on “collaborative governance” and reflected on Scotland’s important effort in the ground-breaking 2020 Climate Group and the prospects for a more nuanced dialogue on the constitutional question. The polarised nature of our independence debate so far has not escaped notice.

I also took part in a session on the regulation of mediators and arbitrators conducted by the movement America Speaks.

As an example of public engagement, facilitated discussion took place in small groups at tables, combined with electronic recording of collective responses to pre-set questions.

Views from each table were conveyed via laptop to summarisers in a back room who distilled the essence and played back the emerging consensus on a big screen. The projected role of courts as dispute resolution centres, with problem-solving at their core (through negotiation, collaboration and mediation), pointed to another important debate about the use of physical court space in the 21st century. The pioneering work of former Netherlands appeal court judge Machteld Pel provides a reference point. It is more than 35 years since distinguished Harvard Professor, Frank Sander (honoured at the conference), proposed in a seminal article the concept of the “multi-door courthouse”. Perhaps its time has come at last.

Mediation was the central topic of the conference, with arbitration having a more limited place. It is notable how much a part of mainstream dispute resolution mediation has become – not only in the USA but in many parts of the world.

Examples abound of legislation promoting mediation and mediation schemes (often judicially led) from India to Bulgaria, Poland to Nigeria, Ireland to Hong Kong, and, notably, Italy.

That said, it is important to reiterate, as many did at the conference, that mediation is not a substitute for a robust court system for those cases where adjudication is necessary. We were reminded, however, of the growing use of online dispute resolution; PayPal and eBay resolve millions of consumer disputes annually online, surely a sign of things to come. The value of finding creative ways to address problems was highlighted by attorney Ken Feinberg, whose role as a third-party “special master” in helping settle post 9-11 and Gulf oil spill claims without mass litigation has become legendary. He donated $7.2 million worth of his firm’s time pro bono to this work. If we still need help bridging the gap in monetary negotiations, Don Philbin’s app, Picture it Settled, provides negotiators with a tool to record and possibly predict where a series of offers and counter-offers might intersect over time.

One of the most fascinating conference addresses came from Moty Cristal, an Israeli veteran of many tough Middle East negotiations. He affirmed many of the key messages about negotiation – effective communication, the need to move from positions to interests, the importance of analysing and developing alternative courses of action and brainstorming all options. His central point was that you can negotiate even when there is little (or no) trust between parties. You just have to deal with it as an issue. Clear communication is essential, respect for the others (no matter who or what they are and what you think of them) is critical, and there is value in a third-party facilitator to build credibility in the negotiating process.

As a message to take from this conference, I liked Cristal’s description of the paradigm shift from the .org world to the .net world, from structured organisations to loose networks. In our fast-paced information technology age that has profound implications for established institutions such as professional bodies, the administration and delivery of justice and traditional legal education. In the new Scotland, whatever that brings, we might find we have no choice in the legal world but to continue to embrace different ways of doing things.

l John Sturrock is chief executive of Core Solutions Group