What does it mean to be an Australian lawyer in the 21st century? What are the contemporary demands of effective and efficient lawyering to adequately meet the diverse needs and interests of clients and society? How can lawyers be part of a profession and a business at the same time? Dispute resolution knowledge, skills and attitudes are the key to answering these questions.
The legal profession professes the rule of law which provides a foundation for civic systems of law and government; serving society by supporting social stability and order, giving ‘vitality to peace, freedom and decency’, and ensuring freedoms (Gerard Brennan, ‘The Role of the Legal Profession in the Rule of Law’ Address at the Supreme Court, Brisbane 31 August 2007, 1). For this reason members of the legal profession engage in an enterprise that is more than simply a commercial industry driven by the neo-liberalist market ideology of the maximization of individual personal 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’ (Susan Kiefel, ‘Ethics and the Profession of the Lawyer’, Address to the Queensland Law Society The Vincents’ 48th Annual Symposium 2010, 1).
Nevertheless, the practice of law is a business as well as a profession, and it is certainly influenced, if not driven, by the reality of market forces. It could be said that the legal profession is a ‘market organisation whose legitimacy rests on a social bargain’, an exchange of status and privilege resulting from intellectual and organisational standing for ‘ethical and altruistic service’ (Joanne Bagust, ‘The Legal Profession and the Business of Law’ (2013) 35 Sydney Law Review 27, 27-28).
Professor Richard Susskind first challenged the legal profession to rethink its position in society, the nature of legal work and legal service provision, and the construct of a lawyer’s professional identity, in his work The End of Lawyers? (Richard Susskind, The End of Lawyers? Rethinking the Nature of Legal Services (Oxford University Press, 2008). His next work, Tomorrow’s Lawyers, also provokes the legal profession to engage with profound challenges to familiar ways of knowing, working and being (Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future (Oxford University Press, 2013).
Susskind’s predictions are for significant change in the practice of law and the provision of legal services. There may be disagreement over the detail of his forecasting, but the general direction and tenor of his arguments are compelling. Susskind has said that we are seeing the decline of the ‘Golden Age of Law’ as we have known it. New ways of working and providing legal services – ways that are more collaborative, less adversarial and more efficient – will replace the practices of the past. He predicts that our relatively staid and conservative profession will see more change in the next two decades than it has in the last 200 years. To cope with this change the profession will need to be grounded, resilient, flexible, responsive and skillful.
Simply knowing what the law is has never been sufficient for successful legal practice in any context, but these days it is even more important that lawyers have the necessary skills and attitudes – legal thinking and reasoning skills, legal research skills, communication and collaboration skills, self-regulation skills and an ethical disposition. The Australian Threshold Learning Outcomes (TLOs) for Law acknowledge this. The TLOs were developed by Sally Kift, Mark Israel and Rachael Field in 2010 as part of the Learning and Teaching Academic Standards Project for the Australian Learning and Teaching Council (available at <http://www.olt.gov.au/resources?text=law>) and articulate what law graduates need to know and be able do. Many of these skills and attitudes are effectively taught in dispute resolution courses at Law Schools around Australia.
In the new environment of 21st century lawyering there is no doubt that dispute resolution knowledge, skills and values are increasingly critical to effective legal practice – for lawyering that continues to uphold the rule of law whilst also responding to market pressures.
Law schools and the legal profession are still some way, however, from adequately acknowledging dispute resolution as a core element of legal knowledge and competence, central to both transactional and dispute resolution lawyering, and important to the future viability of the legal profession, not only in Australia but also globally. Most Australian law schools, for example, do not yet have a compulsory dispute resolution subject, and are creating law graduates without some of the critical skills and attitudes necessary for 21st century legal practice.
The ADR Research Network is contributing to achieving the changes that are necessary in legal culture, practice and education for the law profession’s future sustainability.