Embrace "the new lawyer", mediation expert will tell conference

Legal professionals across the world must change as the needs and aspirations of clients change – by embracing the concept of The New Lawyer, an expert will tell a masterclass in Edinburgh next month.

Latest statistics from the US Federal Court System show 98.2% of cases do not make it to the courtroom. It is a worldwide trend that 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: How Settlement is Transforming the Practice of Law", and comes to Edinburgh next month to explain what she sees as fundamental and inevitable changes.

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.

The tiny percentage of cases going to court means lawyers must move away from their traditional, adversarial role to someone engaged in solving problems, she argues.

"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."

Her research is focused on the US and Canada, but she insists change is coming everywhere – slowly. Dr Macfarlane says legal education and training has failed to keep pace with the changes: "There's not much of an institutional relationship between law schools and the experience of legal professionals. 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."

Dr Macfarlane says the New Lawyer must have new skills: "Lawyers have always negotiated, but with more than 98% 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 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 about teamwork: "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 stresses 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 that embedding mediation, negotiation and conflict management into public life is not an easy task – but insists it is going on everywhere, including at the heart of the new coalition Government: "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'."

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.

"In our business alone, we have undertaken approximately 350 mediations in the past few years, with hundreds of legal advisers from throughout Scotland and elsewhere, across a wide range of sectors from construction to planning, housing to professional services, banking to IP, family partnerships to agriculture, workplace to high tech, often prompted by clients who have been exposed to what works elsewhere – and this is just one small corner of activity.

"We have a real opportunity to build on the work which has been done and perhaps develop differently. But there is still much to do; in this country, we are well behind many others in moving to a new dispute resolution culture. Julie Macfarlane’s masterclass gives us the chance to learn about what is working elsewhere and to refine our own skills.”