Two important new articles came across my desk in the last week or so. They each offer lists of new skills and aptitudes that will be needed by lawyers and conflict management professionals (mediators, arbitrators, negotiators etc.) in the “new world”.
In the first article, Noam Ebner and Elayne E. Greenberg explore this topic with the provocative title “What Dinosaurs Can Teach Lawyers About How to Avoid Extinction in the ODR Evolution.” (Note 1) They begin with the following salvo to the legal profession:
This paper is a wake-up call for the legal profession: Heed the justice changes that are upon us or risk extinction. Online dispute resolution (hereinafter ODR) is currently being incorporated into U.S and international court systems, re-shaping and re-defining justice as we know it today.
They then paint a humorous but profound picture of today’s courtroom as depicted in a future museum which causes the future observer to observe: “..this is one system whose extinction does not surprise you. Particularly, you find it odd that the system was so cumbersome or confusing that it required disputants to pay translators and intermediaries. Your own experiences with the justice process have shown it to be smooth, simple, speedy, and easily navigable to the layperson.” The authors’ conclusion is that ODR was the primary catalyst for the extinction.
The authors predict that the new system will be hyper-focused on education, dispute prevention and settlement (rather than litigation). I couldn’t help but recall the helpful diagram from the National Action Committee’s working group report on the “early resolution services sector” which includes all of these things with the court process only a small piece at the tip of the triangle (see Figure 1 at page 5).
Two existing lawyer roles will be magnified in the ODR context: dispute systems designer and settlement counsel. The emphasis on design is critical (and highlighted in the second article below). The authors identify systems design expertise as essential to the new way of “thinking like a lawyer”.
While the article focuses on the consequences to lawyers of the “next wave of change” evolving through ODR, I believe that the skills required apply across a broader spectrum of practitioners and approaches. The authors identify six “adaptive skills” that lawyers need to prioritize in order to avoid extinction:
- Digital literacies: the ability to analyze and utilize technologies. This includes not only the ability to use different technology tools but also the ability to communicate them well to clients and support the client’s selection of the most appropriate tool to meet their needs (part of the intake, assessment and referral process as well as an ongoing analysis);
- Interdisciplinary knowledge: the ability to holistically address the client’s legal and other needs within the full context of the client’s situation including the need to interact with other disciplines as part of a team;
- Forward-thinking problem-solving skills: the ability to problem-solve beyond the litigation framework in a proactive and strategic way i.e. using “more interactional and transactional skills, requiring lawyers to stay at the table and work with each other rather than making their cases to a hypothetical judge.”
- Emotional intelligence (or “social intuition”): an understanding and facility with the full range of emotional dynamics within ourselves and between others (including but not limited to empathy). Perhaps counter-intuitively, EI is seen by many as even more critical in an ODR environment given the need created by technology for genuine human connection:
An ironic by-product of our increased connectivity to and through the internet is that people feel more lonely and have a greater need for human contact. That need is only likely to increase in the next generation.
- Reliance on higher cognitive processes: strengthening or revitalizing analysis, synthesis and evaluation in order to survive in a market penetrated and disrupted by technology and to be more effective negotiators, strategists and advocates in the new era (per Professor Susskind).
- Entrepreneurial Ability: the flexibility to reshape and market effectively the legal skills offered to clients, including the willingness to unbundle services to meet client needs.
I might add to this list the need for increased focus on “lawyer wellbeing” given the stress involved in these significant changes. See, for example, this recent post by Debra Gerardi including the shift from “thinking like a lawyer” to “thriving as a lawyer”. Note 2.
The second article focuses on the skills needed to perform the role of “civil justice designer”. In “The Ethical Practice of Human-Centred Civil Justice Design”, Victor D. Quintanilla and Haley Hinkle confirm that lawyers have much to offer as justice as system or process designers. Civil justice design can take place within a legal practice (how to assess the client situation and identify appropriate process options), as part of the role of the mediator (to lead the process), within private organizations (disputes with customers), within public institutions (court rules for example), or to deal with large scale issues such as the residential school claims process. Design increasingly includes the use of technology/online platforms (such as ODR).
These authors begin by examining lawyer professional codes of conduct and find that they emphasize the relationship between lawyer and client and do not adequately acknowledge duties to the broader public (or users of the system) who are key stakeholders in the design of dispute systems. This creates a tension between:
“… on the one hand, serving clients who wish to maximize their own selfish interests in the design of a dispute system and, on the other, the public’s interest in a civil justice system and in dispute systems that are fair, just, and legitimate.”
The authors introduce a “human-centred civil justice design” framework which weaves together human-centred design thinking and dispute systems design. It incorporates three skillsets needed by civil justice designers:
- Excellence: the designer will know the various concepts and methods for engaging in civil justice design and the theories of psychology and behavioral science relevant for designing systems that resolve streams of conflict.
- Engagement: The designer will care about what happens to members of the public affected by her design.
- Ethics: The designer will avoid harming others and will serve the public over her own self-interest or self-gain.
Systems design is an exciting and growing role for interested legal professionals. In addition to the adaptive skills identified by Ebner and Greenberg, I suggest that understanding of and experience with human-centred design should be one of the adaptive skills for those practitioners engaged in design.
My thanks to the authors of both of these intriguing articles.
Note 1: In this short post I cannot do justice to this fascinating and helpful article which, in addition to listing adaptive skills required for lawyers) explores a viable vision of ODR, presents examples of its use, discusses the interests of the three main stakeholder groups (courts, clients and the legal profession) and identifies implications for legal education.
Note 2: Mediation training also supports lawyer well-being: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3324017.