Another way to fight your corner

The latest statistics from the US Federal Court System show that 98.2 per cent of cases do not make it to the courtroom. It is a trend Dr Julie Macfarlane has observed closely and one she believes is transforming the face of the legal profession.

She chronicles this in her book, The New Lawyer, and will be in Scotland next month to explain what she sees as fundamental and inevitable changes.

Her argument is simple – the legal profession globally must change as the needs and aspirations of clients change. The basic shift is from the lawyer as a warrior who always has an adversary, to someone engaged in solving problems – the real-life experience of those working on 98.2 per cent of cases.

Dr Macfarlane says new lawyers must have a range of skills – including negotiation, mediation, problem-solving and building effective client relationships – which help them to reach a settlement, rather than taking up a fixed position and staying there.

She says the changes are largely driven by clients, with economic reality and the internet both key factors.

"Lawyers have for a long time been too expensive and clients more than ever want value for money," says Dr Macfarlane, who works in the Faculty of Law at the University of Windsor, Ontario. "They want to know what extra their lawyer can give them that they cannot get themselves by Googling their problem."

While her recent research (ten years of it) is focused on the legal profession in the United States and Canada, she insists change is coming in all jurisdictions across the world.

However, she acknowledges that change is slow – and says the failure of legal education and training to keep pace with a different modus operandi is largely to blame: "There's not much of an institutional relationship between law schools and the experience of legal professionals – in the UK and elsewhere," she says. "Some law schools are very pioneering but anyone who has studied this area would say progress has been very slow.

"Lawyers are still trained as if they are going to be arguing in court – and they come into the workplace and find it's not like that. We don't train people to feel comfortable with embracing this new role. When they come into practice, they find they have to deal with clients, negotiate and solve problems. Some learn quickly; others feel uncomfortable doing work they are not prepared for."

Another barrier to change is the shifting relationship between lawyer and client. "The old model was that the professional person had the greatest authority, expertise and technical knowledge," Dr Macfarlane says. "There was deference to all professional advisers. Now because of the internet, people believe they can find out what professional advisers used to tell them. They are less deferential and want to play more of a part – they are more questioning and want to know exactly where the money is being spent. Lawyers can't say 'I know what's best – leave it with me.' Clients don't accept that any more."

She adds: "It's hard for a profession that has been so powerful for so long to give up that control. I'm not saying lawyers are not essential – I think they are – but the new reality is so different that they almost have to re-brand themselves."

So what is the new brand? What is in the new lawyer's skill-set?

"Lawyers have always negotiated but with more than 98 per cent of cases now not going to court, that negotiation is very different. It cannot be, as it might have been in the past, last-minute and unplanned. It is not about trading off, but it is about treating negotiation as a discrete skill and a strategy.

"It is about starting negotiations earlier, establishing a relationship with the other side and deciding what information to release. It's about communication, strategising, anticipation."

It is also, she stresses, about team-work: "The client is much more part of it. You have to prepare together and figure out how the client can add to the discussion in a constructive way."

Dr Macfarlane is at pains to stress that lawyers still play one of their central historic roles – as advocates – but this does not mean "just stating your position over and over again". She says: "It is about being strong and assertive and clear about your bottom line.

"Mediation and negotiation is not about rolling over and playing dead; but sometimes it's much more practical to settle. You are an advocate, but that does not have to mean banging on the table and shouting."

She accepts embedding mediation, negotiation and conflict management into public life is not an easy task – but insists it is going on everywhere.

"There are many public crises – like post-election Britain or the US after 9/11 – where conflict resolution is going on, but nobody talks about it," she says. "There are people working in between parties to resolve things all the time. Even if they have a particular allegiance, there are those who are trusted to go back and forward to help the decision-makers reach agreement.

"It is absent from public culture but when things need to be dealt with, it's always by negotiation. It's just not very public – it's not obvious, it's not sexy."

One US lawyer described the pace of professional change as "glacial", but Dr Macfarlane feels wider cultural trends are speeding things up. "People are resolving conflicts in their own lives. If I buy something on eBay and don't receive it, what do I do? There is a whole community resolving disputes online.

"There is also a strong commercial mediation community and, for at least 20 years, corporations have seen mediation as a viable way of settling disputes in a cost-effective way. That's because clients have been saying for years 'It costs too much to go to trial – find me an alternative'."

Dr Macfarlane doesn't claim her approach is revolutionary, but believes lawyers need to recognise what they are doing: "I'm not saying this is a great new idea – my research shows it is happening. My goal is to get people to start talking about it and recognising it."

John Sturrock, chief executive of Core Solutions, which is hosting the event, says: "Julie's work is particularly relevant to the legal profession and its future at this time of real challenges. Hers is a message of hope and opportunity if we choose to take it.

"The way in which clients want to see disputes and problems dealt with has changed hugely in the past decade. At Core, we see many matters resolved using mediation but this is part of a wider change, away from adversarialism to a more constructive approach to problem-solving.

"Scottish lawyers are well placed to do this; it is part of our culture and we've seen a real shift in the past few years as solicitors and advocates adopt more efficient, imaginative ways of finding solutions."

Dr Julie Macfarlane's "The Evolution of the New Lawyer" is on 11 June in Edinburgh. She will also be a guest at the Core Conversation and Dinner on 10 June. www.core-solutions.com