Lawyers as peacemakers
Reflections
“Dispute resolution expertise is particularly central to the contemporary real world of lawyering. Communication skills are critical to all the work that lawyers do and negotiation skills are used on a daily basis…Contrary to popular belief, therefore, lawyers are in effect peacemakers,” says Professor Rachael Field
The legal profession professes a commitment to the rule of law which provides a foundation for civic systems of law and government, serving society by ensuring personal freedoms and supporting social stability and order, as well as peace, freedom and decency. The legal profession is therefore more than a commercial industry driven by a market ideology of maximising individual gain through the provision of services for profit. As Justice Kiefel of the Australian High Court has said: “Practising lawyers do not just run a business, selling their skills and services to clients in return for fees. The practice of law is a profession and this sets it apart from other, commercial, enterprises.”
Nevertheless, the practice of law is simultaneously both a profit-making business and a profession and it is therefore influenced, if not driven, by the reality of market forces. It could be said that the legitimacy of the legal profession is upheld by a social bargain: lawyers provide ethical and altruistic service in exchange for a level of status and privilege. However, while the social bargain struck by the legal profession is not a simple or straightforward one, and while professions may well be criticised in modern society for being part of a neoliberalist privileging of the rationality and logic of the market, the social and political significance of the legal profession, both historically and in contemporary society, cannot be denied.
Admission to the legal profession requires a person to be of good character. To endure and succeed in the profession, lawyers need a moral compass and to abide by the customs and character of the community. Admission to the profession requires lawyers to swear, or declare and affirm, that they “will truly and honestly conduct” themselves and that they “will faithfully serve in the administration of the laws according to the best of (their) knowledge, skill and ability”.
Traditionally, lawyering has been broadly divided into transactional work (focused on managing business-related transactions) and dispute resolution work. In both transactional and dispute resolution roles, lawyers are engaged as expert advisers, representatives and advocates who negotiate persuasively on behalf of their clients, assisting them to develop options, make informed choices and decisions, and take control of positive or problematic personal and commercial situations
Dispute resolution expertise is particularly central to the contemporary real world of lawyering. Communication skills are critical to all the work that lawyers do and negotiation skills are used on a daily basis. Transactional lawyering can also be seen as a part of the dispute resolution matrix because effective transactional practice can operate to prevent disputes arising. In effect, transactional lawyering is a form of preventative law, for which dispute resolution expertise is essential. With regard to the dispute resolution aspect of legal practice, contemporary lawyering involves an expansive matrix of dispute resolution process options, many of them conducted away from the court system.
It is positive that lawyers are now much more aware of the benefits of non-adversarial approaches to helping people resolve or manage disputes. Perhaps more importantly, users of legal services are also demanding more seriously that their legal advisors help them find ways to resolve legal problems and disputes without the cost, delay and disruption of adversarial approaches and court proceedings. Increasingly also, processes such as negotiation, mediation and conciliation are being institutionalised through recognition in government policy and inclusion in the statute book at both state and federal levels. More and more, civil procedure legislation expects or mandates that parties to legal disputes engage in a non-litigation process, and take genuine steps to resolve their dispute, before they are able to file proceedings in a court. Further, once a matter does reach court, judges at all levels of the Australian court hierarchy have wide-ranging powers to refer matters to court-connected dispute resolution processes.
The result of these developments is that non-adversarial dispute resolution processes and approaches have become embedded in Australian legal practice and are an inherent part of the day-to-day work of lawyering, even in matters where litigation is also being considered. A practical indication of this is found in the trend in law firms to rename their litigation sections with reference to dispute resolution, and barristers increasingly include assistance with mediation and conciliation processes among the legal services they offer.
Contrary to popular belief, therefore, lawyers are in effect peacemakers.
First published in The Eagle, the magazine of St John’s Cathedral. Download your copy today.
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