Are we winners of cases or resolvers of disputes, and is there a difference?

by Ron Smith

The recent interest in alternate dispute resolution by the courts, the bar and the public raises important questions about the role of lawyers. It is time to ask ourselves: Are we winners of cases or resolvers of disputes, and is there is a difference?

In the movie Paper Chase, Professor Kingsfield stands in front of new Harvard law students and tells them: "You come in here with a skull full of mush, and you leave thinking like a lawyer."

How does a lawyer think? What is there about our training and experience that uniquely equips us to assist our clients in resolving their disputes? Should we more aggressively market those skills in the ADR arena? Are we realizing our full potential as a profession? These are serious questions for all lawyers.

In an article in the January, 2000 issue of The Verdict, Kenneth Price states:

We often forget that one of the wonderful things about our common law system of justice has been the development of a set of rules of evidence and procedure, which, although viewed as archaic and ponderous by the layman, has weathered the test of time ... A properly run trial is a precise and beautiful creature, likely to produce the closest thing possible to truth and justice in an otherwise confusing world."

This eloquently describes certain traditional beliefs that we, as lawyers, bring to a dispute. We believe that if clients give their dispute to skilled professionals who follow rules of procedure and evidence, and take the matter before a competent trier of fact and law, "the closest thing possible to truth and justice" will prevail.

As lawyers we are practitioners of rules. We define a dispute, taking out the parts of it that we deem irrelevant, often excluding large parts of the history of the parties and the emotional undercurrents between them. We fit the dispute into a fixed body of law, apply rules that further narrow the inquiry, and hand the matter to a third party to give us an adjudication based on the hard work we have done to narrow and restrict the issues.

The end result probably does seem to some parties to be achieved by an archaic, ponderous (and often expensive) process. Of course one of the parties, the loser, may even question whether the result is fair. Our response is that the result is predictable, in the sense that we can point to a body of law where similar facts created similar results. We will say the result is fair, in that the tribunal is impartial and is itself bound by the law.

In many cases, the common law system is the best method of resolving disputes. Fixed rules, impartiality and predictability are the foundation of commercial and interpersonal peace in our society. In addition, the courts play a valuable role in defining and evolving the law to meet the changing needs of our society, always on the foundation of the wisdom of courts past.

However, the fact is that not all disputes need to be handed to third parties to be resolved. We all bump into disputes in our lives. Whether with children, spouses, partners, neighbors or friends, we simply do not always agree with everyone about everything. No one would say that every dispute we encounter should be given to a third party to resolve. Indeed, all of us would probably agree that it is a good thing to resolve as many disputes as we can, one on one, with the other person. The reason for this is obvious. Most disputes involve more than truth and justice. They involve relationships, emotions, historical and ongoing issues, and simply getting on with life.

Mediation practitioners ask the question: If it makes sense for the parties to talk before litigation, why doesn't it make sense for them to talk during litigation? For their clients, the paramount issues may centre on cost, predictability, control and relationships. The test of the success might not be the degree of truth achieved as much as the satisfaction of the parties.

Lawyers have carved out a very particular role in the dispute resolution process. We do an excellent job of assisting clients to navigate the complex world of commercial transactions. We bring our considerable negotiation skills to bear to explore pre-trial settlements.

But there is increasing opportunity for us, as more and more matters are being dealt with by extra-judicial methods of dispute resolution. It is important to realize that change is coming from two directions. First, there are more disputes that fall outside the traditional matters dealt with through the trial process. Residential tenancy issues, environmental and land use issues and work place problems are examples.

Second, more and more people are offering services as ADR practitioners. While only lawyers can offer legal services, anyone can call themselves a mediator. Accountants, notaries, counsellors, and just about everyone else is getting into the ADR game. I predict that the real growth in this area will come from the large accounting firms, who will offer their management consulting services to large corporations to assist them in resolving disputes outside the traditional legal system.

Lawyers must make a shift in the way they think about what they do if they are to maintain their place as the profession the public looks to assist in the resolution of disputes. The issue is not moot. At the recent bi-annual Interaction Conference in Vancouver, over 800 people involved in dispute resolution — from educators, to treaty negotiators, to criminal justice workers, to civil dispute mediators — met for four days to talk about what's new in the dispute resolution field. Lawyers appeared to be in a minority at the conference, some describing themselves as "recovering lawyers."

As a profession we have to ask ourselves some hard questions. Do we cling to a narrow approach as the practitioners of rules and laws, achieving truth and justice in what can be a complex and expensive system? Or, do we broaden our horizons — to be the one profession that can offer the public the benefit of legal expertise and a wide choice of dispute resolution?

To step into this field with confidence, we need to decide: Are we winners of cases, or resolvers of disputes? Most importantly, we must ask ourselves as a profession: What do our clients want? If the answer is that they want to resolve their disputes in a timely and cost-effective manner, with as little disruption to relationships and life as possible, then we may have to accomplish more than preserving and enhancing our traditional approach as lawyers. We must realize that the courts are only one forum among many available to our clients and be prepared to embrace all the alternatives.

* Ron Smith is a Kelowna lawyer who practises in the fields of family, employment and personal injury law, and has built an extensive mediation practice in those areas over the past 15 years. He is a Chartered Mediator with the B.C. Mediation and Arbitration Institute and serves as a panel member of the Canadian dispute Resolution Corporation, the Insurance Dispute Resolution Services of British Columbia and the B.C. Mediation Roster.