Will Changing the Process Change the Outcome? The Relationship between Procedural and Systemic Change

• Author: Julie Macfarlane
• Position: Professor of Law University of Windsor Ontario
• Pages: 1487-1508

Professor of Law University of Windsor Ontario. I am grateful to Bernie Mayer and Roselle Wissler for their extremely helpful comments on an earlier draft of this essay.

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I Introduction

The development of litigation alternatives in family law-most notably, family mediation and the more recent emergence of collaborative family law-is often heralded as the answer to the miserable emotional, financial, and practical consequences of many divorces. The costs of litigation, especially for children,¹ are clearly demonstrated by research and recognized by many disillusioned lawyers. Some family lawyers speak with a distaste bordering on ferocity about the negative consequences of litigation. Consider thePage 1488 following comment from a family lawyer reflecting on twenty-five years of practice experience: "In litigation, even if you got a good legal result for the client . . . at the end of it there is just depression and ashes. It leaves more than a sour taste-it leaves a sickness in the stomach of the client, and in mine too."²

The rights-based position-taking required by a litigation strategy entrenches feelings of grievance and entitlement. Position-taking, however justifiable, inevitably acts to polarize the parties and escalates conflict. The resultant tensions can be deeply unsettling for lawyers and clients alike. Such experiences led one experienced litigator, himself in the process of divorce, to describe litigation as the unleashing of "demons" who represent the dark side of human nature: "[Litigation] feeds the demons raw meat and works them into a frenzy...[it] provides a battalion of troops for vindication."³

Position-taking in litigation also tends to reduce creativity and the capacity for accommodation. In this environment, winning takes on a particular appearance and may overshadow a practical, acceptable family transition. Even if winning is ultimately achieved, it may not be all that was hoped for. Inevitably, emotional closure and recovery are pushed further away in the process, often eroding any remaining commitment to co-parenting.⁴ In civil trials, the process of resolution may be prolonged yet further by the need for enforcement steps after securing a favorable judgment. This may partly explain why, in this author's 1995 study matching a control group of Ontario litigants who went to trial with a group who mediated their dispute, only 8.5% of trial group litigants described themselves as completely satisfied with the outcome.⁵

This dismal record of the failures of the traditional litigation model, especially in the family context where future parenting relationships are often critical, suggests a strong case for rethinking processes and procedures in order to reduce the negative consequences of litigation while maintaining the protection of vulnerable clients. But is redesigning how we approach litigation, for example, by the introduction of new consensus-building processes such as mediation and collaborative law, sufficient to change the quality of the experience for litigants and its outcomes?

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II The Impetus for Procedural Reforms

The reliance on lawyer-to-lawyer negotiation to resolve the vast majority of suits before trial appears at first glance to support the assertion, made by many lawyers, that they are extremely effective at settling cases. That is, until we look closely at just when and how settlement usually takes place. Most settlement takes place either shortly before trial or "on the courtroom steps." Of particular concern are the delay in commencing serious negotiations until significant resources have been expended⁶ and the restrictive, depersonalized, and often inadequate character of negotiated solutions.⁷ A further concern should be the apparently minimal amount of time lawyers actually spend on negotiation, especially when compared with their efforts to pursue litigation.⁸

Lawyers generally conduct litigation as if they are going to trial but they almost never do.⁹ Research on the negotiating behaviors of family lawyers,¹⁰ personal injury specialists,¹¹ and commercial litigators¹² demonstrates that lawyers practicing in these areas assume they will ultimately settle almost all of their cases. However, research also shows that the ritual opening "dance" (at least) of lawyer-to-lawyer bargaining is dominated by hard-line positions reflecting zero-sum assumptions which drive a culture of competition and widespread expectations of zealous advocacy among bothPage 1490 lawyers and clients.¹³ The "double-think" involved in knowing that a case will almost certainly settle but acting as if it will not is variously explained by the need to present a strong or even aggressive opening in order to obtain a good deal,¹⁴ the need to bolster one's reputation as a strong negotiator,¹⁵ and the need to frame every possible strategy within the "shadow of the law"¹⁶ that may be the final arbiter of the conflict. These justifications sustain and reinforce habits of negotiation that prefer to define a problem according to legal issues,¹⁷ which are inevitably normative and understood as either right or wrong positions.¹⁸

This importance of maintaining an appearance at least of resistance to settlement extends (at the client's cost) into widespread reluctance among practicing lawyers to even contemplate negotiation until "everything" is known about the case,¹⁹ where information is rarely offered up voluntarily and is sometimes withheld. The consequent lack of knowledge about the other side's motivation, goals, needs, or sincerity replays over and over again the defensive-reactive dynamic of the Prisoner's Dilemma.²⁰ These philosophic and behavioral habits are further overlaid by a widespread yet generally unstated conviction that any other approach to settlement negotiation would defeat the current market economics of legal practice. As one lawyer admitted: "[Mediation] kick[s] me squarely in the pocket book, or not me because I have clients that want to fight those big numbers, but . . . if you're being entirely selfish, just looking at the lawyer's interest, then why do I want this?"²¹

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These assumptions about what it means to be an effective litigator and negotiator result in a litigation culture in which settlement is frequently understood as the manifestation of a "watered-down legal system"²² rather than a skillful negotiation process which achieves the clients' best interests. For a disconcerting number of litigators, settlement is for "wimps:" "I would say to the client, if you're interested in settlement, you go and talk to the other side about it, I'm very bad at it. My job is to manage a war, not to manage a peace."²³

Not all lawyers approach settlement negotiations this way, but enough do to produce a perception that, despite the small number of cases that proceed to a full trial, a culture of adversarialism is on the rise. This author's own research on commercial litigators found many examples of lawyers who understood their role as highly adversarial or, and this may be more important, believed that this was the cultural expectation of them: "I'm known as a son of bitch. I'm not afraid to go to trial. I won't cave in and go and settle. I have clients who know that and don't mind losing. They want to fight, so they expect me to be a son of a bitch."²⁴

Professor Andrea Schneider's recreation of Gerald Williams's pioneering research on how lawyers negotiate found, like Williams did twenty-five years earlier, that lawyers self-describe a range of negotiation styles,²⁵ including both "problem-solving" ("co-operative" in Williams's original survey) and "adversarial" ("competitive" in Williams's survey).²⁶ Schneider also found that the number and the "nastiness" of "adversarial" lawyers in the sample had increased.²⁷ She attributes this at least in part to the culture of competition in law school and legal practice: "[G]iven the choice between being too soft and too hard, most lawyers would opt for too hard."²⁸

The complex and diverse culture of legal practice, impacted by numerous factors such as area of practice, size of firm, and size of thePage 1492 local bar, and so on,²⁹ inevitably makes generalizations about the rise or fall of adversarialism contestable. What is less contentious is that the sensitivity of the consuming public (especially institutional and corporate clients) to exponentially rising legal costs has led to demands for less costly and more efficient methods of dispute resolution, demands that policy-makers have begun to respond to via procedural reforms. An increasing appetite for early reporting, strategic settlement planning, and early dispute resolution has been noted in relationships between commercial lawyers and their institutional clients (for example, financial institutions and insurance companies).³⁰ Sophisticated commercial clients, especially repeat players, may generally be less prepared to be passive and more inclined to assert their wishes. Sometimes, this is attributed to the increasing influence of in-house counsel, who are obliged to account for and justify all litigation expenditures to their managers.³¹ Litigators themselves are noticing the change in approach among many of their commercial clients. As one expressed it, "[T]he old 'just fight-at-all-costs and don't look at it [the legal bill], don't even think about an approach [opening negotiations],' [that attitude] just doesn't seem to exist anymore."³²

Whatever the current state of adversarialism in the legal profession, policy-makers have become extremely concerned about the economic...