Lots of ideas have been floating around for awhile describing new ways to practice law in light of the rise of alternative dispute resolution and the vanishing trial. These ideas revolve around finding a more cooperative, negotiated approach to exchanging information, evaluating the parties' interests and positions, and preparing a case for early resolution. This approach shares some of the goals and styles of collaborative law, but according to the collaborative lawyers, you can't properly call it collaborative law unless the lawyers and parties are willing to sign a participation agreement that requires the attorneys to withdraw if either party decides to proceed with litigation. Acceptance of that process has taken hold in the family law area, but has not gotten far in other forms of civil litigation. Few civil lawyers are willing to renounce the representation of our clients in litigation if negotiation or mediation fails.
I'm writing from this year's ABA Dispute Resolution Section spring conference in Miami, where a task force presented a proposal for something they are calling Planned Early Dispute Resolution. Since that sounds like a mouthful, they are suggesting the acronym PEDR. It's a variation on another name suggested in John Lande's book, Lawyering with Planned Early Negotiation, which he shortens to another acronym, PEN. The concept has also been called "cooperative" practice. By any of these names, the basic idea is to attempt to resolve a dispute by negotiation or another ADR method before it blossoms into a full-blown adversarial process. This task force has published a handy user guide that explains how lawyers and clients can overcome the "prison of fear" that traps parties into allowing disputes to turn into litigation as usual, and also outlines how to conduct early case assessments, plan for potential disputes, and manage disputes as they arise through negotiation, exchange of information, and the use of third party neutrals such as mediators or arbitrators. But they still seem to be struggling to come up with a catchy name.
Similarly, the International Institute for Conflict Prevention and Resolution (CPR) has promoted for years its ADR pledge that many corporations have signed committing to attempt to resolve conflicts by alternative means prior to initiating litigation. But again, what do you call the lawyers who seek to bypass traditional litigation? They're not exactly trial lawyers, because they don't expect cases to go to trial, and they're not litigators either, because they avoid litigation unless other methods fail.
At the conference, I also had the privilege of meeting Julie MacFarlane, a Canadian law professor who wrote a book several years ago entitled The New Lawyer describing how the adversarial culture has changed in light of litigators' increased focus on settlement. I asked Professor MacFarlane what those of us who are attempting to change the way we are representing clients in conflict should call ourselves. Even when I mostly practiced a fairly aggressive style of litigation, I never much liked the term litigator, since I regard a lot of litigation activity as wasteful, whether or not the case goes to trial. I prefer the term trial lawyer, but it's not accurate either, since so few cases go to trial. At this point, I'd rather present myself as a practitioner of conflict resolution, or a problem solver, but those descriptions are not well understood by clients or the public. MacFarlane told me that some Canadian lawyers she knows have actually borrowed the title from her book and are starting to call themselves "new lawyers." That description does have some appeal, as long as it doesn't turn into something like New Age Lawyer, which would probably scare away some corporate clients. But it hasn't taken hold well enough to be understood either.
Until something better comes along, I'll continue telling clients that I practice conflict resolution in all of its forms, and that I am committed to exploring alternatives to litigation whenever possible. But I don't like defining myself by what I don't do, so I usually just call myself a lawyer/mediator who handles business cases. I'm still waiting for a better handle to describe the new style of law practice to which I and others are committed.
So I'm open to suggestions for a simple and easily-understood label for the field of conflict resolution that a lot of lawyers are already practicing, one that conveys its meaning as easily as terms like "litigator" or "trial lawyer," and one that hopefully does not require an acronym.
By Joe Markowitz