A very interesting blog post by Dr Julie Macfarlane in which she sketches out the basics of a lawyer-coach role as an additional way of offering legal services.
Lawyers as coaches for self-represented litigants
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Monthly Archives: December 2013
Collaboration and ADR Community – a great new experience
Despite committing to a field which scrutinises, develops and enhances the resolution of disputes, our ADR community seems to attract more than its own fair share of conflict.
The best thing about the meeting of the ADR Network in Brisbane last week was the wonderful spirit of collaboration. What a pleasure to see outstanding ADR academics and professionals from around the country working together harmoniously to share ideas and critique each other’s ideas constructively. It was a big lesson about what we can accomplish when we model the behaviour we encourage in our writing. As a result, the publication we are planning has a theme – Challenging Professional Identities in Dispute Resolution – and a cohesion not possible without this kind of engagement.
Well done @BeckyBatagol and @rachaelfield68 for terrific organisation and leadership and thank you to all the group members for encouragement and wisdom.
Who’s Who Legal 2013 – ADR Roundtable
Interesting piece from Who’s Who Legal about what is happening internationally in ADR
Once again it looks like the take-up of ADR is more a reflection of price sensitivity than of an awakening in lawyers of where and how ADR can support their clients’ interests. Perhaps it doesn’t matter what the motivation is provided the outcome builds the platform. What the article doesn’t say (but what I suspect) is how ADR is being used. I think it is very likely that what we are seeing is simply the growth and entrenchment of the settlement mediation model.
The melodrama of conflict
One of my big projects at the moment is working on a book called the Melodrama of Conflict. My theory is that people who are not managing conflict well tend to tell their story of conflict in the genre of melodrama (the proper classical genre, not the way we use the term colloquially).
Professor Nadja Alexander and I developed the REAL Conflict Coaching System to support people in conflict to move away from dysfunctional melodramatic conflict narratives. We want our clients to move from being a passive victim to being the active hero of their future conflict story. It might sound weird, but I think a better genre for a constructive conflict narrative is tragedy.
To find out more, listen to my talk to the International Coaching Federation in the USA on coaching people through the melodrama of conflict (this is a recording of the tele-seminar, so there’s a bit of chit chat at the start as people logged into the call): http://www.freeconference.com/RecordingDownload.aspx?R=13352997&C=734&E=193325
Unpacking the “adversarial advocate”
The traditional lawyer is described as the “adversarial advocate”. I have been contemplating what this actually means when the traditionally oriented lawyer works within the context of dispute resolution. What does “adversarial” mean – does it mean to be oppositional with others or does it mean to be partisan for the client? What does “advocate” mean – does it mean to put an argument on behalf of the client or is it a substitute for the title “lawyer”? If it means the former, does an advocate necessarily act as spokesperson and the client refrain from participation?
Let’s start with some dictionary definitions of each of the words. These are taken from the online Oxford Dictionary.
“Adversarial” is an adjective and has two meanings. First, “involving or characterised by conflict or opposition”. This meaning brings in a competitive flavour. Secondly, a law specific meaning of adversarial is offered in the dictionary, describing a trial or legal proceedings “in which the parties in a dispute have the responsibility for finding and presenting evidence.” The adversarial legal system relies upon this responsibility, which is traditionally performed by the lawyers. The second definition does not necessarily have the competitive flavour of the first.
“Advocate” is a noun that also has two meanings offered in the dictionary. First, “a person who publicly supports or recommends a particular cause or policy”. Secondly, “a person who puts a case on someone else’s behalf”. The second meaning is the traditional notion of the role of the lawyer. However, can a lawyer put a case on a client’s behalf while also facilitating the client’s direct participation in the process?
Simply on the basis of these definitions, I would argue that:
1. A lawyer can adopt the quality of being “adversarial” without being oppositional/competitive in approach.
2. When applied to lawyers, the term “advocate” means partisan representative of the client’s interests.
3. An advocate can facilitate direct client participation – meaning that collaborative participation with the client or restricting the lawyers’ role to expert legal opinion are both available as well as the spokesperson role. The point is that the lawyer’s contributions are on behalf of the client. The client can also contribute.
I’m posting this because I am interested in other people’s thoughts about these tentative ideas.
What do you think?
Dispute Resolution, in Person, for Real
So, I’m excited!
Along with 13 other members of the ADR Research Network, we have been meeting in the glorious sunshine at Queensland University of Technology’s Garden Point Campus this week. Meeting for real, in person. With coffee in hand and fuelled by victuals kindly provided by QUT law school, we have be discussing the most difficult aspects of dispute resolution theory and practice.
The ADR Research Network was founded in 2012 by a group of dispute resolution academics from across Australia. We live and work in the far corners of this big country, from Hobart to Townsville, from the Gold Coast to Bundoora. Some of us are mediators, some lawyers, some legal philosophers, educators and we all live and breathe dispute resolution. We had all met at conferences before and read each others’ work over the years and a few of us have even written together. But we wanted to do more than just see each other occasionally and referee each others’ work: we wanted to engage with each other on what we are working on, we wanted to debate the hard stuff, we wanted to share a laugh.
As well as running this blog, we have decided to write a book together, based around the theme of changing professional identities for both lawyers and mediators in dispute resolution. The increased use of ADR and institutionalisation of processes such as mediation challenge us to rethink the role of lawyers and mediators in dispute resolution. Questions arise such as is mediation now a profession? Is there a single mediation community or are there multiple communities of mediation practice? How do we train lawyers to achieve justice in mediation? What is the basis of an ethical decision making process for mediators? How best do we define mediation and is that important? Should neuroscience affect mediator practice?
The most exciting thing about our book project is that it is so collaborative in nature. Each chapter will be written by a single author but with extensive feedback from the group as a whole and from individual authors. This will create a highly reflective and tightly structured collection that we hope will be central to understanding contemporary dispute resolution practice.
We are still writing and putting together a book proposal. To give you a sense of what we are all writing about, here’s a way to see the tweets we have made over the past few days at the workshop. We have been using the hashtag #adrresearchnetwork. These tweets summarise the ideas raised by each author in our chapters and some of our thoughts around the table as a group.
Stay tuned …
The Australian Dispute Resolution Research Network 