Book Review - The New Lawyer: The convergence of legal advocacy and negotiation
The New Lawyer
by Julie Macfarlane
UBC Press, 2008, 245pp
Review by Michael Zeytoonian
Julie Macfarlane’s new book, The New Lawyer, gives lawyers a strategic blueprint for how to train and position themselves for a place in the legal profession’s new order. Her central theme is her conviction that the new lawyer must synergize their formal legal training and analytical talents with new negotiation-based skills. Her arguments in support of the convergence of the law with negotiation are insightful and compelling.
The emergence of several alternative dispute resolution (ADR) approaches and methods, and the growing tendencies to utilize these rather than resort to litigation, calls on lawyers to bring both skill sets to the table, rather than replace the old with the new. “The relationship between law and dispute resolution is similar to the relationship between rights and interests, positions and interests … Each is less the opposite or a contradiction of the other than the other side of the same coin, reflected in a difference of depth of analysis and style of presentation,” she writes.
Macfarlane suggests that the new lawyer is “primarily a conflict resolution advocate and only occasionally an adversarial advocate,” and therefore views and uses information differently than a litigator does. There is still a critical role for appraising a case, assimilating large amounts of new information, doing the legal research, strategic planning, effective oral communications and evaluation of the potential outcome. The difference is in approach: Interest-based negotiation focuses on settlement by intention and design versus positional, adversarial litigation and preparing for trial. The evolution calls upon lawyers to adapt and embrace skills that are more focused around negotiation than adversarial litigation: Listening skills, communications skills, building rapport and trust and using emotional intelligence.
The conflict resolution specialist must provide clients the strong advocacy they want and need, Macfarlane points out. Clients “want someone to help them find and articulate their voice, to validate their concerns, and to protect them and their interests, perhaps because they are fearful and/or vulnerable.” In suggesting that we “reclaim and redefine what we mean by advocacy,” Macfarlane notes that “a good advocate has a number of choices for how to meet these fundamental needs in ways that are different from and ultimately more effective than adversarial bargaining.” Conflict resolution advocacy is about “focusing more of counsel’s energy on the creation of good settlements rather than good positions … less about aggressive posturing and game playing and more about working with the client to diagnose their needs and priorities, and staying open to the creation of new pathways to meet these.”
Turning her focus to ethical challenges faced by the new lawyer, Macfarlane identifies four emerging issues: informed consent; tension between serving the client’s needs and the whole group or process’s needs; maintaining good faith bargaining; and pressure to settle within the chosen ADR process. The needs to inform clients of the choices available to them, to facilitate the client’s choice and to change the approach when necessary are essential elements of the new approach to dispute resolution. It is essential that “the client understand that they are choosing this process as an alternative to other possibilities.”
Macfarlane’s new lawyer must master and balance the old and new skills of law and negotiation, inform clients on the range of process options available, set the course that is best for the situation, all the while partnering with clients to steer and guide them along the new and sometimes groundbreaking options that alternative dispute resolution offers them. For these reasons and for the future lawyer that has already become the lawyer of the present in a fast-changing world, The New Lawyer is as important a desk reference as any other on procedure or law.
Michael Zeytoonian is a lawyer, mediator and ombudsman and is the founding member of the Zeytoonian Center for Dispute Resolution LLC in Wellesley Hills.