I don’t know why it wasn’t so clear and obvious to me before! Lawyers can make problems worse.
This is the reason why I’m often so dissatisfied with being a lawyer.
I became a lawyer to help people, and do for people what they can’t do for themselves.
Except that the legal system, and the way many lawyers work, is fundamentally flawed. It causes, or at least inflates, problems and makes it harder to resolve!
Many of us try our best, but many lawyers often make the problems worse. Those of us who try are stuck in a system that is failing us and our clients, and are surrounded by other lawyers who exacerbate the problems.
Lawyers setting up the problem
Lawyers are usually good at finding a solution to a problem. But often, then do not look at all the options and evaluate those options in the light of the client’s goals and objectives.
Instead, a lawyer will often look at a problem, and know how it can be resolved through litigation. Then the lawyer will convince the client of their legal position, setting them into a bargaining position and wanting to fight for a principle.
We actually prime our clients for conflict, instead of helping them resolve it.
Lawyers then inflate the problem, and potentially the client’s expectations of their likely outcome.
When we have commenced litigation, holding out firm position, and then finally we need to participate in a late-stage dispute resolution process … it’s often too late.
By the time we’re in a late-stage dispute resolution process, we then need to re-set out client’s expectations (all in one pressurised day) back to where they probably were originally, to try to force a settlement.
Then no one is happy – neither parties, and often their lawyers are emotionally drained by the process.
Lawyers have a conflict of interest
Not only to lawyers (often unwittingly, but sometimes consciously) set their clients up for conflict … but we also often have a conflict of interest.
This is one of my biggest bug-bears with the industry, and why I’m most ashamed to be part of it.
Lawyers increase their earnings through misery, particularly those who bill on a hourly basis.
If a lawyer is billing on an hourly basis, then they want to increase the amount of work they do on a matter. Not only are they incentivised to work inefficiently, but they are also incentivised to prolong the matter.
I have personally experienced many times where solicitors are fairly overt about prolonging matters for their own benefit, and not genuinely trying to resolve anything. It is extremely frustrating and unprofessional – and I am increasingly ashamed to be part of a profession filled with many who practice this way.
We can do better
If we can remind ourselves why we became lawyers in the often place – most of us because we wanted to help people – then there is still hope that we can do better.
It should be only the desperate few cases that are ever litigated. This should not be our default position to try to leverage a matter, or use litigation as a strategy (it’s a poor and costly strategy).
There are many alternative dispute resolution methods that have been around for many, many years. Lawyers know of them, but have little training in them, and have often experienced only bastardised versions of mediation.
I just completed my Collaborative Practice training. This method helps participants to resolve issues in a different way – where all parties, including the lawyers, sign an agreement not to litigate the matters.
Now I’m enrolling in mediation training, because the late-stage mediation that I have experiences as a lawyer is not true mediation, and I want to know how to do it better.