Can lawyers use mediation and/or its postulates to change the negative perception of their profession and can they improve the traditional system of dispute resolution?
Time we live in, fast way of life, demands put upon us lawyers, constant struggle for better and more, constant social pressure put upon our legal profession – all this alienates us from each other, but mostly from our clients and the entire public. All of us lawyers have quietly accepted the role of tough individuals to such an extent that we started to lose ourselves and each other, but also the environment we operate in.
The entire human race seems to be hypnotized by moving in the wrong direction: we are encouraged to love and own material things rather than people, we stopped searching for goodness in others, we rather choose to blame others for our situations than to take responsibility for our own actions, we rather not talk than have a warm human conversation, we talk rather than listen, we choose politeness over honesty , lies over truth , easy way over the hard one. Our lives start to lose sense when we choose to keep quiet about things that matter, when we stop listening to each other, when we stop communicating. Silence is the ending to every solution, every relationship, cooperation and collectiveness. Is it not the perfect time for us lawyers to stop being silent about things that matter to us? We witness an extremely powerful negative public perception of our profession. When talking to regular people, the clients, it is possible to witness the real proportions of this perception. All of us individually, but also as a group, are seen as a negative social force. Whether these sharp spears of the public are aimed at judges, state attorneys, lawyers or other legal officers, or even all of us together – it is completely irrelevant. We simply must not keep quiet about their existence nor should we ignore the negative perception and continue to convince each other about its nonexistence. Instead of choosing passivity and silence we should be proactive. We should face the negative perception and consider our individual and common options for allowing positive changes to start taking place. What can we do in order to improve the traditional system of dispute resolution, which obviously no longer satisfies anyone? Can we make our own contribution to boost the satisfaction of all participants in legal procedures and, at the same time increase our own satisfaction with our profession? Can mediation postulates help us achieve this?
CHALLENGES OF THE LEGAL PROFESSION IN THE EXISTING SYSTEM OF DISPUTE RESOLUTION
Legal profession must be one of the oldest professions in the world. There are many records of extraordinary legal minds that operated throughout history and strongly influenced the legal practice. Today more than ever legal topics occur in media, books, films, as well as reality. It is hard to remember a positive headline about Croatian judges and their work. Positive headlines about attorneys have probably never appeared, not to mention the corporate lawyers. Why is that the case? Is the situation really so depressing when it comes to the legal profession? Are the media and the public really right?
Is it possible to inform the public about an entire army of diligent judges, state attorneys, attorneys and other lawyers who do their jobs honorably and professionally and carry the burden of Croatian judiciary? No matter how hard we try to convince ourselves that the negative perception of lawyers is just a consequence of acts by the few careless, incompetent and dishonest among us, and that everything else is an unfounded and unjust generalization of our profession, we must start to believe that simply doing our jobs diligently and professionally is not enough to cause a positive change. Without individual and collective widespread activities aimed at positive changes in approaching our everyday legal practice, the existing negative perception will not change. When we talk about the negative perception of legal profession we must agree that it is mostly aimed at legal practitioners. That is why this paper will mostly focus on the work of those in majority: judges, attorneys and lawyers who work in various state institutions, trade associations and companies. They are usually the ones mostly criticized.
Although each of these professions has its own special role in our legal system, they all have one instrument in common – the law. Another thing they all share is the fact that by doing their everyday jobs they all somehow contribute to an unenviable condition the legal system is in as well as the discontent of all its participants. However, if they make their own contribution and apply a new approach where they put the client in the spotlight, the improvement of the general situation will be possible. We can only conclude that it is up to lawyers to decide whether they want to change the negative perception and earn the reputation and the authority in the society. That is the only way for them to improve the level of personal work satisfaction.
Special attention will be given to the position of judges, attorneys and corporate lawyers in practicing their everyday professions. Each of them has his own role which carries its own problems. It is necessary to point these problems out in order to emphasize how each of them is dissatisfied with the working conditions in the existing traditional system of dispute settlements. This paper will also suggest how each of them could improve their own personal satisfaction, but also the satisfaction of the clients as well as the entire public. These suggestions should not be seen as an attack on the traditional system of dispute settlements. The system as such is an unquestionable and irreplaceable foundation of every community. It is suggested that it should only be redesigned in order to improve the entire social community.
Judges are inevitably at the top of the legal profession. Besides the honor and the social reputation this profession implies , the work of Croatian judges sometimes also implies certain masochistic characteristics. No matter what one thinks about the judges, their profession is the most independent of all, provided that the judge chooses such an autonomous approach. The autonomy is unquestionably something immanent to every judge. The press often mentions the courage of a certain judge for making a certain decision, although courage is an inevitable part of this profession.
Judges must always strive to be objective and unbiased as well as to fulfill the pressuring norm. It often seems that the burden of many social adversities is on them and so they often seem to be the ones to blame. They are harsh, formal, unapproachable and law-abiding. They ignore everything legally irrelevant, never deal with emotions and interests and they reach their verdicts entirely according to the law, which often brings them into a moral dilemma.
Today’s parties almost exclusively go directly to courts. The results of this are courts swamped with cases, which most judges cannot handle within reasonable deadlines. It is often said that the number of judges in Croatia is too great, but it is rarely mentioned that the number of cases per judge is tremendously greater than in any other country in Western Europe. One of the consequences of having too many cases in our courts, have been numerous demands from Croatia to pay reimbursements, due to unreasonably long court proceedings. Dissatisfaction of all the participants is enormous. Yet, when talking about possible solutions, all eyes are on judges. They are not magicians and cannot solve all the pilled up problems of the society, especially not by themselves. That is why they need all the help they can get from everyone inside the judicial system, as well as the entire community.
The thing is, the existing judicial system was built to last and, in maintaining it, everyone seems to be giving their best, even the clients. Taking this into consideration, do we need to keep the role of the judge who watches over the parties’ rights and do we need to make him responsible when those rights are not exercised? Vigilantibus iura – ‘Rights to those who watch over them’. Aren’t the clients responsible for exercising, or not exercising, their own rights? Aren’t the parties responsible for engaging in perilous affairs which eventually lead to disputes? Is it not their right and obligation to avoid the disputes to begin with and then try to solve the disputes themselves and then go to court as a final point?
Judges, as a part of the legal profession, are pressured daily by:
– the number of cases and their quota
– constant struggle with time
– frequent adopting of new regulations, as well as changing the existing ones
– constantly being blamed for insufficient work, incompetence and corruption
– inappropriate position within the society
– frequent immoral offers for better paid positions
– parties abusing their own rights
– inner struggle for having to choose between making a collegial or a strictly formal decision
– inner struggle between the feeling of justice and the feeling of legitimacy
– judging according to probability , not certainty
– feeling that realization and violation of someone’s rights depends solely on them
– need to gather as many facts and evidence as possible to make their decision substantiated
– the possibility for their decisions to be abolished
– conflict between the role as a public person and the need to protect one’s privacy and professional dignity
– lack of a strong voice which would protect the interests of the legal profession
– struggle between a desire to inform the public about the difficulties of the legal profession and an internal opinion about the inappropriateness of judges appearing in the press
– numerous additional jobs which should not be a part of judicial area of work
– constant anger and dissatisfaction of many clients
– personal dissatisfaction with the existing judicial system
– material dependency of the courts
– weakness of the judicial government as one of the three independent parts of government in each society
– media generalization and sensationalism aimed only at the negative
Attorney’s profession has been given a rarely dignified role: to watch over the rights of those who cannot do it themselves. In their everyday work they arm themselves and their clients with legal weapons and ammunition and prepare for a juridical war that takes place in the court’s arena. They often partake even when they know that they cannot win.
They fight with deadlines, often unreachable and different judicial practice, judicial authorities and personalities , personalities of their own clients and the entire system inside which they try to find a better position for themselves and their clients. In their work, attorneys are pressured by:
– success of their clients but also their own accomplishment
– the fact that the client will hear nothing of the weak legal position in a dispute
– client’s aggression and the need to defeat the opponent
– client’s negative emotions and frustrations
– a wish for a successful settlement of the dispute, but also an opportunistic desire for the dispute to last longer
– conflict between their own interest and the one of the party
– struggle between professional and ethical regulations and the client’s need to succeed
– unsparing competition amongst lawyer
– expenses and earnings
– constant commitment to only one side, fairly or not.
Attorneys, as an individual profession , are an inevitable part in realizing the desired changes inside our legal system. Although some of them think that it would be best to simply preserve the existing state, that opinion is considered to be wrong. Attorneys meet with new demands and the ones who meet them will be the first to board the train of upcoming changes that no one will be able to stop.
Corporate lawyers make up for the largest but often the most underestimated part of the legal profession. Most often they are diligent and loyal legal experts of their trade associations and very strongly care for the interests of the companies they work for. They are familiar with every detail of the dispute the company is in, the background, the causes of the dispute, and interests behind them as well as the people who caused them. Their warnings, mainly to the members of the boards are very often neglected, seen only as an obstacle. However, when there is a problem, the corporate lawyers are the ones to be blamed and it is expected from them to solve all the problems. All these circumstances put corporate lawyers in an unpleasant position in their everyday work, where they are pressured by:
– their own position within a company
– relationship with the company’s board and unavailability of the members of the board
– underestimation of the importance of their role in a society compared to the main trade
– insufficient influence in the making of decisions
– too great expectations from them to act upon the consequences of already made decisions
– feeling of inconsistency between the real importance of their role in the society and their formal position
– underestimating of their potentials compared to the services of professional proxies
– they are often the ones to blame for the mistakes made by board members.
The fact that the number of corporate lawyers is so great, gives them an opportunity to contribute to the desired positive changes of the traditional system of dispute settlement.
WHAT IS IT IN THE EXISTING SYSTEM OF DISPUTE RESOLUTION THAT MAKES ITS PARTICIPANTS UNHAPPY?
Long court procedures create permanent dissatisfaction of all its participants, as well as everyone else who uses the justice system. The dissatisfaction originated from the feeling of legal insecurity, produced by suspense. Adding to this the significant court expenses, as well as the disturbed mental and emotional balance of the participants, especially the clients, we get all the elements that indicate the crisis of the judicial system.
This crisis is not a feature specific only for Croatia. It has spread to judicial systems of other developing countries, as well as the modern western countries. Looking for a way out most countries, especially the USA, reached for an intensive search for alternative solutions. They have all been searching for methods that would open the way of dispute settlements, avoiding the slow, inefficient and expensive disputes before the judicial authority. These activities have become an imperative because of the citizens who need the guarantee of an appropriate institutional method of solving disputes, but also because of the courts, since an alternative to the court trial can at least lower the pressure felt by the courts. Not only would this disburden the courts, but also hasten and advance their work.
In most European countries legal education and practice are based on a thesis that a court procedure is a standard, regular and sometimes the sole method of dealing with legal disputes. Until recently the settling of legal disputes was observed only from the perspective of the government, which intervenes in social relations by applying abstract norms to individual cases. So, the dispute between clients is seen as a reason to activate the government apparatus which needs to demonstrate how justice is done. The apparatus often ignores the interests of clients, or even work against them.
Today this perspective has changed a great deal. There is a growing pressure on the state to ensure for its citizens, as well as legal officers, the most appropriate mechanisms for the dispute resolution. This pressure comes from below, from the citizens themselves as well as their organizations, which are mostly media and entrepreneurship. The profession’s point of view is changing as well; a pragmatic element is becoming more important: how to settle a dispute quickly and efficiently, as opposed to determining an abstract truth at all costs (fiat iustitia, pereat mundus). That is why, until recently certain European legal traditions considered each autonomous and nongovernmental mechanism of the dispute resolution to be a disloyal competition to the state judiciary, and as such was frowned upon. The expression alternative dispute resolution (ADR) comes from the before mentioned psychology, according to which everything that is not a court procedure is considered an exception or an alternative. Today these alternatives are encouraged by the state, but also judiciary whose job it makes easier.
Encouraging the alternative dispute resolutions, mediation has become a priority in the European Union . The same initiatives are becoming more emphasized in Croatia as well.
SOCIAL CLIMATE OF DISPUTING – CRISIS ELEMENT OF THE JUDICIARY SYSTEM
Croatia was not spared from the crisis of the judiciary system. Today’s courts have better working conditions than ever, we have more judges and lawyers then ever before and a great number of judges work diligently to fulfill their quota. Even with all that the problems still exist. As a matter of fact, they are becoming bigger and bigger. One of the reasons for this must be the enormous quantity of court cases which exhausts all the participants of the court procedures. The unquestionable fact is that the clients still almost exclusively turn to state courts as the most attractive forums.
Clients and lawyers almost directly go to state courts . There they anticipate a verdict which will resolve their case according to legal and court orders. Court hearings are often a front for a world of suppressed parties’ interests, worries, desires and conflicts, which cannot be legally interpreted. Legal conflict and a conflict behind it do not usually overlap.
Through a judicial proceeding the parties wants to attain his rights based on legal regulations. In order to achieve this, the party must legally interpret his dispute, turning his own personal interest into a lawsuit or a defense. The lawsuit is only one specific, inflexible and one-sided conflict resolution, based exclusively on the interests of the complainant. The parties are forced to dig out each other’s past during the ‘legal battle’ to find proofs (arguments) and facts that could be relevant for the verdict. That kind of behavior causes freezing of the opposing attitudes, completely irrelevant for the initial conflict. The initial interests are often forgotten and parties mix their initial interests with loads of legal facts and details. Taking stand in conflicts and judicial procedures entices people to focus only on conflicting and differentiating.
Officially, a legal procedure deals only with legal contents. Disturbances in communication and emotions involved in the procedure are not a part of judge’s juridistiction. This of course does not mean that emotions and disturbed communication are not a part of legal procedures, every judge or a attorney knows this is not the case. Besides, it is clear that the legal procedure itself is not the most suitable device for improving relationships and expressing emotions. On the contrary, lawsuits often cause further escalation of the disturbed relationships between the parties.
Even with all these disadvantages of court procedures and the fact that the dissatisfaction with courts is great, parties and their lawyers still turn to them almost exclusively for resolving disputes, neglecting all the aggravating circumstances caused by trials as well as the fact that they themselves are in the center and that they are the ones who could make the resolution of the dispute faster, cheaper and more efficient. The moment the opposing clients terminate all communication; the conditions for resolving their dispute peacefully disappear. Those parties, who often have negative emotions and unrealistic expectation, turn to their lawyers, judges and other judicial experts to resolve the case for them. That way they turn the responsibility to someone else and put their destiny into someone else’s hands expecting a verdict from a slow judicial system. The success of the lawsuit usually does not correspond to the expectations of either client and the verdict will not help improve their relationship. What is more, it will even escalate the disturbance of the relationship.
PARTIES’ BEHAVIOUR PATTERN IN A LAWSUIT
Parties not capable of resolving a dispute themselves, or the ones who do not want to, turn to attorneys for legal help in order to realize their rights. Doing so, they take on either an active role of the plaintiff or a passive role of the defendant. In both roles, using permissible and unacceptable means , they aim at acquiring the best legal protection available, whether they are right or not. The main goal of the lawsuit at court stops being a resolution in favor of clients and becomes a struggle to win at all costs, or to lose with the least consequences. Things like time and expense seem to slip away from the sphere of the parties’ primary interest.
Parties often wonder about the strength of their legal position. They want to know what the worth of their lawsuit is. They also wonder about their chances to win the case. Looking for the right answers to all these questions is often additionally complicated by their initial unrealistic expectations and demands. Their attorneys can rarely explain how farfetched those expectations are, since the parties are often prepared to listen to their attorneys only as long as they are telling them what they want to hear. If the lawyers encourage them additionally, chances for a quick and peaceful resolution are very slim.
Parties and their attorneys rarely have the same interests. Not only can attorneys help their clients by explaining them their legal position in a dispute, but they can also manipulate them by not giving them all the information, or simply by expressing strong emotions caused by the dispute. All this creates difficulties. On the other hand, the client can have some unrealistic demands and withhold some important information from the attorney , putting the attorney in an unpleasant situation. There is no such reward for the attorneys that would resolve such a contradiction.
All the mentioned circumstances point to the disadvantages of the existing judicial system. Protection and the independence of the professional status of judges and attorneys contribute a great deal to these circumstances. Such position in the society caused a certain self-sufficiency of judges and lawyers which lessens their capability to adapt to changes. They feel privileged, which is obvious from the way they observe lawsuits from a certain distance, without an emotional involvement. They become craftsmen or even doctors for legal disputes , since the clients go to them just as patients go to doctors.
The moment the legal dispute escalates to such an extent that the parties terminate any kind of communication between themselves; they are no longer capable of settling the dispute on their own. Since they are not familiar with the law, the court procedures, nor their role in the formal process of disputes, they turn to legal experts for help. The parties delegate all their responsibilities to their attorneys and give them full authority over the procedure. As a consequence, the parties become completely passive, expecting from others to deal with their case and so they lose any kind of control. As a final result we get long-lasting lawsuits in which none of the participants are directly included. Those lawsuits usually end with a decision that does not please anyone.
ELEMENTS OF DISSATISFACTION WITH THE LEGAL SYSTEM
According to the nature of the dispute itself, the participants of the court procedures witness real human dramas, significant frustrations, great expenses, deliberate delaying, dishonesty, resistance, bitterness and finally, permanent annihilation of many relationships. All this makes many people believe that the existing dispute resolution system, as well as the traditional lawyer’s approach is not the most appropriate solution.
The existing dispute resolution system in all its segments emphasizes political differences and their confrontation. Constant reflecting, even enhancing of the client’s confrontation seems to be one of the strongest elements of their dissatisfaction, during the procedure, as well as after it. The dissatisfaction is the consequence of the existing system which encourages the clients to:
– demonize their enemies
– create their own feeling of guilt
– avoid their own responsibilities
– confuse each other with problems
– focus on past instead of present or future
– focus on less important things and neglect the important ones
– persist on pointless assertion of truth
– avoid dialogues, communication, listening and understanding
– bury themselves in legal positions instead of discovering interests
– attack the person instead of the problem
– focus on victory – to defeat the opponent instead of restoring the disrupted relationship
– entrenching in confrontation
– go to war using all means possible inside the court arena
– increase the existing dissatisfaction and frustration
IMMANENT ELEMENTS OF EVERY LEGAL DISPUTE RESOLUTION SYSTEM, WHICH INITIATE DISSATISFACTION OF ALL THE PARTICIPANTS
Legal dispute resolution system is:
– relying on general rules, which are often inappropriate for specific cases
– enables concealing instead of revealing actual situation
– decisions are made based on probability, not certainty
– always producing winners and losers
– permanently proclaiming one side to be right, the other to be in the wrong
– based on someone’s mistakes, and never on the relation that caused those mistakes
– permanently damaging the relationship between clients
– makes the outcome uncertain
– excludes dialogue, any kind of communication between clients
– does not prevent, but sanctions
– based on confrontation, which it strengthens
– judicial proceedings are controlled by judges and lawyers, not by clients
– unequal judicial practice can produce unequal justice.
The entire legal system exists on the presumption that the courts are a force superior to people. The force requires unconditional obedience based on power, guilt, fear and shame of every individual as a community member. That is why the legal system as such, although necessary and irreplaceable, cannot help to establish communication between opposing clients, it cannot re-establish the relationship between them, nor can it enable any kind of co-operation in solving the dispute. Also, it never deals with the emotions and interests of the clients.
This kind of system encourages attorneys and corporate lawyers to manipulate; it encourages them not to tell the whole truth, not to take full responsibility as well as to withhold some important evidence and information. All this often forces judges to judge based on inadequate, insufficient, unverified and twisted evidence. This way the winners are made, whose victory is based on technicalities, as opposed to important issues. Also created are the losers whose lives irreversibly change because of the determined guilt. The winners too are not happy. They often get less than they expected. The initial feeling of victory turns into a feeling of bitterness. How can there be pleasure in defeating someone and so ruining a relationship? Is there not a greater pleasure in turning enemies into friends? Can something inside the legal system achieve this?
The law was created to control conflict, not to solve it. It was created to stop disagreement, not to learn from it. It was created to suppress emotions and not to fulfill them, to solve the case, not to reestablish a relationship. A third party is supposed to make a decision, without the parties’ mutual consent. Verdicts are often seen as a special law for a specific relationship. They produce temporary peace between parties based on the presumption of the court’s objectivity. There is no better system than this one. And that will remain so until the parties are ready to at least try, alone or with someone’s help, to solve the dispute, take responsibility for the resolution of the dispute, but also for their own lives and their own decisions, and not to passively give in to the authorities. Without parties actively taking part in the resolving their own disputes we cannot expect any improvements to take place in the existing judicial system. Such participation by the parties should be enabled by lawyers mainly.
IS THERE A BETTER WAY FOR PARTIES TO RESOLVE THEIR DISPUTES THAN THE TRADITIONAL DISPUTE RESOLUTION SYSTEM?
The better way is mediation , in the courts or outside them. Mediation is not an alternative , but simply another way to settle disputes, which does not jeopardize the traditional system.
Mediation gives us all the same possibility of CHOICE, to resolve a dispute in the well-known court environment or in a different special way of resolving it. In mediation, whether voluntary or not, the clients have absolutely nothing to lose because they are the only ones who can make a decision about the dispute. Also, if the mediation does not work they can always go to court. Mediation, as a way of settling the disputes enables :
– volunteerism and informality
– communication, dialog, co-operation
– resolving the dispute together, through an agreement
– free expression of all the details of the dispute
– free expression of emotions
– expressing and revealing one’s interests behind the dispute
– separating oneself from the problem
– listening and hearing each other
– not to confront for the sake of confrontation
– focusing on the present and future instead on the past
– being honest, sincere, modest, creative
– forgiveness and co-operation
– direct and complete involvement in the procedure without professional and unintelligible expressions
– not having a third person make a decision
– complete control of the parties over the procedure and its results
– lack of suspense about the outcome
– victory to both sides
– preserved dignity of both sides
– remaining human with all the flaws and virtues
– understanding the needs and interests of the other side, as well as their reasons for certain behavior
– re-establish the disrupted relationship and preserving it for the future
– taking responsibility for one’s decisions, actions and life itself
– voluntary fulfilling of the duties accepted from the settlement, without an enforcement by the court.
Mediation is a procedure in which nobody is trying to compress the vast variety of human relation into a general legal rule. Mediation postulates are just indicators of lawyer’s new approaches in dealing with everyday affairs, whether they are a part of mediation procedures or not. Direct involvement in mediation is not a condition for introducing changes into the legal system. Mediation has been created because of the inefficiency of the judicial systems, as a way to contribute to faster, cheaper and more creative dispute resolutions in order to satisfy all the participants as well as the entire community. Mediation has not been created to replace the existing traditional dispute resolution system , which as such is necessary in every social community, but to be used with all its advantages in order to complete the traditional system, to refresh it and make it more human in a way. Finally, mediation can improve the existing judicial system simply by taking over some cases and so disburdening the courts and making them more efficient that way.
Mediation postulates used by parties, their representatives as well as mediators can improve the traditional dispute resolution system . By using them it is possible to regain the lost faith in the system, but also to restore the reputation of the legal profession and bring back the smile on the faces of lawyers.
Mediation in Croatia is developing slowly but surely, and it is only a matter of time when it will produce the effects mentioned in this paper. The aim is to draw the attention of the supporters of mediation, but also its rivals, to the fact that mediation is not a magic wand that can answer all our questions or solve all our problems. The great number of cases will never be appropriate for mediation, so our lawyers and judges will still do most of their work inside the courtrooms, no matter how much mediation might spread. Our ambitious goal is clear – to restore the trust of parties and the entire public in judiciary and the traditional dispute resolution system and to erase the negative perception of the legal profession.
WHAT CAN LAWYERS DO INCREASE THE SATISFACTION WITH THE LEGAL SYSTEM?
Lawyers can put their clients and their interests into the center of attention, the center of their legal activities. Everything the lawyers do, they do for the sake of parties. Only if they apply this approach consistently can they change the negative perception of their profession.
What can the judges do?
– they can take off the strict and formal mask which separates them from the rest of the world
– they are free to transform their posture inside the courtroom, especially at the beginning of every hearing
– they can explain to every individual his own role in the procedure, as well as the roles of other participants
– they can lower the frustration of the parties and witnesses by explaining that the court procedure does not anticipate statements which are not legally relevant
– they can explain that the court procedure is not about dealing with emotions and interests behind the dispute
– they can choose whether to deal with the emotions and interests of the parties
– they can show that they understand the parties and their position
– they can help the clients by informing them about their legal position (the principle of open judiciary)
– they have more time to prepare for every hearing
– they can prevent every action that could prolong the procedure and the abuse of it, as well as increase the level of discipline inside the courtrooms
– they can exclude even the smallest bit of unnecessary fellowship form their practice
– they can dedicate more time to their clients and help them reach an agreement
– they can always suggest mediation and point to its advantages, as long as the nature of the case allows it
– they can write their verdicts concisely and intelligibly
In every social community judges are conservative by nature and that is just the way they are supposed to be, since their responsibility is, among other things, to protect the society from too many fast changes. Also, inside the legal profession judges are the most influential people and any improvement in the legislation depends on them. It is their decisions that create the frames of the set social relations and their word, being extremely socially important, is often the last. The judges are also the ones responsible for the situation in judiciary, but also for the situation of the entire legal profession, and so indirectly for the situation of the society itself. So, one might say that it is their right as well as their duty to contribute to the welfare of all social segments. That way they might stop being members of a quiet profession and become active members as well as the creators of positive changes, demanded so vociferously by the spirit of modern times.
The severity of judge’s role in every society, but also a new direction that role should take in dealing with everyday legal affairs, as well as all the clients who produce and then try to solve their disputes in one way only – through a lawsuit, is very realistically shown by an anecdote from the courtroom of a judge who was supposed to decide which parent should get the full custody of a minor child: As it often happens, a mother and a father had a verbal argument in the courtroom. They yelled and did their best to belittle and discredit each other concerning the ability to raise a child. They were assisted by their lawyers who were fighting for their client’s interests. By doing so they only made the matters worse. The judge was watching them and listening closely until their behavior become unacceptable and so completely useless. He stopped them and calmed everybody down. When everyone was quiet, the judge asked the mother: ‘Madam, please allow me to ask you a question, do you love your child?’ The mother said: ‘Of course I do. What kind of a question is that?’, ‘OK’ said the judge and then turned to the father: ‘And you sir, do you love your child?’, ‘Of course I love my child, I would give my life for him’. The judge paused for a moment and then he said: ‘You see, you both love your child, whereas I don’t. And so it is not clear to me why would you put your child’s destiny in my hands?’ The parents peacefully looked at each other and then asked from the judge to allow them to leave the courtroom together with their lawyers. They returned after having made the decision about who was going to get the custody over their child. The judge made the decision they both had wanted.
This real-life story best explains the direction the legal profession as well as the parties should go in order for the existing dispute resolution system to become more human, as well as to make all the participants of the system as satisfied as possible.
What can attorneys do?
– they can help clients to prevent disputes
– they can become their advisors who will help them settle a dispute outside the court
– they can help them to resolve the dispute faster, instead of multiplying their problems
– they can stop convincing them of how certain their victory is
– they can truly get to know their client’s legal position and possible negative outcome of the trial
– they can help their clients change the role in which they blame and demonize others and turn themselves into victims
– they can help them end the hostile mood as well as the desire for a legal battle in the courtroom
– they can enable their clients to have a more active role
– they can persuade their clients to communicate with the opposing side
– they can always be available and understanding
– they can inform them about other options for resolving a dispute as well as the reasons why those might be more suitable (negotiation, settlement , mediation settlement)
– they can prevent every action that could prolong the procedure and the abuse of it, as well as increase the level of discipline inside the courtrooms
– they can choose not to participate in the client’s confrontation in the courtroom as well as outside it
– they can choose not to encourage their clients to aspire to defeat their opponents
– they can try to convince them that winning a lawsuit might in a way mean losing a life’s battle
– they can explain that a deal could re-establish a ruined relationship and preserve it for the future
– they can accept the fact that contented clients pay the fees and gladly come back.
Attorneys should not be simply technicians and tools used by clients for confrontations. They really should stop being and behaving like mercenaries for their clients. Many attorneys do not realize that they owe their clients the truth about whether they are guilty or not, the truth about their objective legal position. The fact that they do not share that truth with their clients only because the clients don’t want to hear it is quite a paradox.
Attorneys should find a way to really help their clients resolve a dispute in the best possible way. They should help them become realistic, especially when it comes to their expectations and demands, as well as the problems they are facing. With their advice attorneys can help them avoid or minimize emotional traumas which are a part of every dispute and divert them from simply trying to prove who is right and who is wrong. Because, that is the way to lead a legal battle in the courtroom, not a way to communicate, understand each other and freely express emotions and interests in order to solve the dispute.
Attorneys should suppress their client’s fighting urges, but also their own urges, especially the strongest one – to overpower or defeat the opposing attorney. By behaving this way, attorneys could do a lot to change the negative perception of the legal profession , and they could create a new perception of them as being those who do not take their clients into a boxing ring, but to a desk where they try to make peace and settle .
What can corporate lawyers do?
– they can take over a more active role in making decisions inside their own company, especially preventive decisions, when deciding on closing a business deal
– they can use their own example and their own results to confirm their professionalism, their dedication to the companies problems, and so prove their irreplaceability
– they can impose more actively to the boards as reliable and trustworthy
– they can join the activities dealing with settling disputes outside the courts, and promote these activities and commit to them by including stipulations in the contracts made by their company
– they can secure all the necessary documents and other logistics for dealing with a certain case
– they can actively encourage the board members of their companies to finalize all the court procedures by settling or by making deals through mediation, and so improve their business, but also personal reputation
Corporate lawyers also have a choice. They can get organized and united and with their numerosity and new activities aimed at positive changes of everyday legal affairs, they can improve the reputation of the legal profession, as well as their own personal reputation within the entire society. Their numerosity is their biggest advantage which they should definitely use.
WHAT CAN LAWYERS DO TOGETHER TO IMPROVE THE TRADITIONAL DISPUTE RESOLUTION SYSTEM AND THEIR REPUTATION IN A COMMUNITY?
Legal profession is usually described as independent, lonely, autonomous, untouchable, courageous, and so on. All these adjectives strongly contributed to the freedom of accomplishment of this profession without which it would be unimaginable. On the other hand, it is because of those adjectives that lawyers excluded activities such as co-operation, solidarity, mutual respect and sense for a common cause, whether professional or political.
It is certain that this kind of approach from the lawyers, among other things, contributed to their present position in our society, but also their position in the entire legal profession.
Can members of the legal profession, no matter which role they play, accept the challenges of modern times? Can they individually, but also together, contribute to the changes of the existing dispute resolution system as well as their everyday legal practice? Can their own activities change the way parties and the entire public see the legal profession and so improve their reputation as well as their own work satisfaction.
It is up to them to decide whether they will continue to behave the way they have been until now, or will they lose the bad habits and fight for the change of the existing situation.
New social trends impose new roles for the lawyers. These could help them go back to the primal objective, which is to settle the dispute, not the case. Until they find themselves in a dispute, all the lawyers deal with the cases and not with the people behind those cases. They are all pressured by deadlines, the number of cases to be solved, pressure from the parties and their wishes and interests, but mostly their own differences and confrontations. Besides, they are pressured by demands for a better quality of work, limitations of the system they work in and the dissatisfaction of all the participants, the entire public, but also their own dissatisfaction, since they very often feel their work is rarely appreciated compared to how much and how hard they work.
The public sees the existing traditional dispute resolution system as aggravating, unclear, bad, slow, and unjust. The system is definitely not party oriented and it is often incapable of satisfying them. Still, the system as such is extremely important, unavoidable, necessary and socially desired. However, many cases that end up in courts could be solved in a much more appropriate way for the parties. This is obvious from the fact that many clients as well as their representatives are showing interest for solving their disputes without direct confrontations.
The legal services market is considerably changing. Today’s practice of resolving disputes based on legal positions is replacing their resolving based on parties’ interests. The present legal system is centuries old and it requires a certain re-design according to social changes. Legal officers should take responsibility and add a new value to the existing dispute resolution practice.
The real purpose of a lawyer is to bring together the separated parties, not to disconnect them permanently. This separation of parties is something every lawyer does, quite often and rather unaware. While doing so they insist only on one-sided interests or position of their parties, neglecting the interests of the opposing side and, most importantly, ignoring mutual interests.
By changing the focus of the dispute resolution system from settling the disputes exclusively based on legal positions to settling based on mutual understanding of interests , even with the assistance of law, lawyers can make big steps inside their everyday legal affairs. This way they can increase the satisfaction of parties , but also their own satisfaction with their work, their achievements and their entire profession. That would be the best way to prove how important as well as useful legal profession is to the entire social community.
How the described mediation postulates can help lawyers and their parties in achieving this goal is the most obvious from the opinion the parties and their lawyers have on mediation procedures done in the High Commercial Court of the Republic of Croatia. Their view of mediation and the mediators is a powerful evidence of validity and social benefit of the path we began to follow, but which still has many obstacles . One of the most prominent evaluations of mediation was given by one of the party, who said the following: ‘Mediation in this court regained my trust in judiciary.’ It is hard to imagine a better vocation than this one as well as it is hard to make a firm step forward.
‘There is nothing as powerful as an idea whose time has come.’
New ideas can be seen as a threat or a solution. Which one is it going to be?
Modern times demand from the legal profession to redefine the roles of all its representatives, as well as to redefine the existing traditional dispute resolution system. The legal arenas were based exclusively on mutual battle and confliction, where the lawyers are gladiators and the parties are audience, a very passive one. Those arenas should be replaced or preferably completed by forums where parties and lawyers will take on new roles whose main aim will be to constructively participate in all phases of the dispute between the parties , not just in its final phase when there is a winner on one side and a loser on the other. This way of settling the disputes only seemingly makes peace between the parties; it actually strengthens their confrontation, builds their dissatisfaction and creates a danger of new conflicts. New approaches to dealing with everyday legal affairs suggested in this paper can relieve every dispute from its negative aspects and turn the dispute resolution into an improvement tool for mending and developing every relationship, which consequently brings satisfaction to all the participants of the dispute resolution, as well as the entire social community.
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