After years of intransient and pernicious access to justice challenges, including unaffordability, delays and undue complexity, and increasing numbers of litigants representing themselves by necessity and choice, there is a growing consensus that the justice system requires fundamental reform.
As the former Supreme Court chief justice, Beverley McLachlin, recently stated:
COVID-19 is highlighting for us what we already knew — that the justice system needs to be revamped and reformed. The system has been running on the edge of viability for years, struggling to maintain backlogs and reasonable hearing times. Now, with courts shutting down, things will only get worse. People will have even less opportunity to find support for their life challenges and cases will either be foregone or pile up. If we care about accessible justice, we must stop living on the edge and make our procedures and hearings more efficient.
Julie Macfarlane, a Professor of Law and a Distinguished University Professor at the University of Windsor, is a well-known thought leader and writer in the areas of dispute resolution, the role of lawyers, access to justice, the modernization of the justice system and public engagement in legal system reform. In her book, The New Lawyer, Second Edition, Macfarlane points out that to retain clients and remain relevant in a rapidly changing environment, lawyers will need to develop a new approach, emphasizing lawyer-client collaboration, conflict resolution advocacy and revised financial structures, including unbundled legal services.
Certainly advocating for a practice model built on a participatory lawyer-client relationship and a settlement-oriented approach will be preaching to the converted in the collaborative family law community. In many ways, we already embrace the “New Lawyer” skills of building a constructive partnership with clients, based on mutual respect and communication. Tasked with the restructuring of families, we seek to understand individual and mutual needs and goals, to advocate within the appropriate process option and to focus on reaching settlement, informed by both the law and what maximizes, to the extent possible, mutual interests.
Stating that we need to move beyond the traditional lawyer in charge, sole focus on legal rights and justice as process paradigms, Macfarlane advocates for new meta-principles of the importance of negotiation, a commitment to constructive conflict engagement, the ability to switch hats between fighting and settling and a recognition of the value of non-legal, preventative or systems-based solutions. Macfarlane points out that embracing these new meta-principles will require the development of new behaviours, skills and practices. In describing the New Lawyer, Macfarlane sets out what we as collaborative practitioners seek to do when working with a family, specifically constructively engaging with conflict in order to better understand what resolution strategies and potential settlement options are available to them.
Framing it as conflict resolution advocacy, the New Lawyer understands the distinctive dynamics of both distributive (divide up the pie) and integrative (expand the pie, then divide it) negotiation styles and employs these different modes depending on the type and stage of the negotiation process. Further, successful advocacy involves understanding when to employ cooperative versus competitive strategies. Value-claiming (establishing and holding to a “bottom line” or core components of an acceptable solution) and value-creating (exploring the additional benefits that the parties might jointly develop and share) creates balance and provides alternatives to move through impasse. With an expanded range of tools and strategies, collaborative practitioners, or in Macfarlane’s parlance conflict resolution advocates, are better equipped to shape negotiation outcomes and reach agreements.
What is particularly timely in the New Lawyer is Macfarlane’s focus on the access to justice crisis which threatens the reputation, credibility and legitimacy of our legal system. In response to changing consumer demands for more affordable legal services and increased client participation, lawyers will increasingly be asked to offer coaching, unbundled services, fixed-fee services or a combination of these approaches, rather than a traditional full retainer/billable hours arrangement. Macfarlane notes that disruptive technologies, for example online dispute resolution such as the BC Civil Resolution Tribunal, are unstoppable and inevitable to change the regulation and delivery of legal services, the role of judges and our court systems. Perhaps a silver lining of the current global coronavirus crisis will be the impetus to finally innovate and transform the justice system to better serve its users. Collaborative practitioners will be uniquely positioned to assist and lead the way.
 “Access to Justice: Justice in the time of social distancing | Beverley McLachlin – The Lawyer’s Daily”, online: <https://www.thelawyersdaily.ca/articles/18386/access-to-justice-justice-in-the-time-of-social-distancing-beverley-mclachlin>.