Sustainable law practices
This article describes both new and existing legal practices that can now be employed as tools for sustainability in the law. The formula of “sustainable law” has been used in the past (Daicoff 2009; Farrow 2008). But the environmental and economic crises now facing the world behoves lawyers to rethink their profession. Access to justice is still dominated by systems whereby judicial and punitive methods are preferred to non-adjudicative, reparative or integrative methods. This is not sustainable in the long run for a variety of reasons. Adjudication is not always accessible to all sectors of the population, andit generates excessive competition in the legal professions, with consequent additional costs imposed on the public system in terms of human, material and monetary resources. Although the advantages of the principle of competition are undeniable at a systemic level, there are so-called “hypercompetition” cases in which competition and adversarialism cause dysfunctions for all those involved and for society as a whole, including lawyers.
Lawyers need to look at conflict resolution outside the adversarial logic. Despite the fact that “justice is conflict” (Hampshire 2000), it is also true that conflict does not always translate optimally into litigation. When conflicts end up exclusively in judicial litigation, that means that the justice system is “taking distance from reality” and it “refers exclusively to formalism: public adjudication is overburdened, setting the worst example of legal constructivism” (Resta 1999). Alternative approaches, for which we have different definitions, are available in this respect: comprehensive law, responsive law, collaborative law, appropriate dispute resolution, restorative justice. There are now at least three relatively recent professional practices, besides mediation, which allow the lawyer to systematically adopt a collaborative approach to conflict resolution or prevention. In some jurisdictions, these practices are beginning to be institutionalized and codified.
Rules that codify the negotiations between parties assisted by a lawyer have been adopted in France (Procédure participative de négociation assistée par avocat, Law 22/12/2010) and in Italy (Procedura di negoziazione assistita da uno o più avvocati: Law No. 162/2014). The aim is to encourage the parties and the lawyers, againt specific benefits, to adopt a principled-based negotiating style (Fisher and Ury 1981), and possibly reach a mutually satisfactory settlement, or at least a not-so-unsatisfactory solution as to cause subsequent litigation or failure to comply. The main incentive provided by these rules is the direct enforceability that is granted to any settlement agreement reached through a negotiation protocol. The negotiation protocol provides certain predefined and voluntarily agreed procedural steps, and is based on the mutual obligation of good faith and non-opportunistic behavior. In Italy, lawyers have a specific duty to propose an assisted negotiation in the event of vehicle or boat damage, regardless of the value, and for requests of payment for less than fifty thousand Euros. The assisted negotiation proceeding is a pre-condition for litigation in these cases. It should be noted, however, that until now the number of settlements that have been reached through the assisted negotiation procedure is low, and that only in family law cases, some noticeable results have been achieved.
Another remarkable example of legal sustainability is the collaborative law practice, or simply “collaborative practice” (Daicoff 2009; Macfarlane 2004; McLin 2010). Professionals who adhere to this practice are committed to reaching a pre-contentious agreement with their clients. This requires that the professional engagement include an obligation not to resort to litigation, by means of a disqualification clause, which in case of judicial action implies the refusal of the mandate by the lawyer, and therefore the loss of any future remuneration. Collaborative practice is, for the time being, only used in family law, but several commentators have supported and defended its theoretical applicability to other fields of law (Daicoff 2009; Fairman 2007). From the North-American professional world (Canada and the United States), collaborative practice is now moving towards Europe. Empirical research has highlighted that clients of collaborative lawyers achieve a higher rate of agreement (87%) and avoid judicial disputes (Daicoff 2009). The commitment to avoid litigation is pursued with greater disclosure than in ordinary professional negotiations, and with limits to privileged communication between client and lawyer. All participants in the negotiating meetings can speak freely, provided both the lawyer and the client are present.
In 2010, the collaborative practice was promoted in the United States through the Uniform Collaborative Law Rules/Act (UCLR/A), proposed by the Uniform Law Commission for adoption by individual states. The procedural rules proposed to facilitate and institutionalize the collaborative practice are “an automatic application for a stay of proceedings before a tribunal (court, arbitrator, legislative body, administrative agency, or other body acting in an adjudicative capacity) once the parties file a notice of collaborative law with the tribunal”. The court can obtain a status report while the proceedings are stayed, but only in order to ensure confidentiality of the collaborative law process (Rule/Section 6). Information needs to be exchanged without a formal discovery request, and updated when the conditions change (Rule/Section 12). The collaborative lawyer must also engage in understanding whether the potential customer has a history of coercive or violent relationship with another prospective party, and in this case the lawyer must establish guarantees for the beginning and the continuation of the procedure (Rule/Section 15). Finally, the collaborative process is covered by confidentiality, in particular with regard to subsequent judicial proceedings, similar to the situation in mediation (Rule/Section 17).
Consensus building in public policy decisions:
Consensus building has been employed in recent years in the field of administrative law, and specifically for the procedures by which public bodies determine the regulation of a private sector, or the ways in which large public works are carried out that affect private or diffused interests. Here too, the underlying principle is that traditional administrative procedures and litigation are often ineffective, especially when a large number of subjects are involved (polycentric disputes). Most often administrative litigation is based on a bargaining position that fails, which almost makes inevitable the longer and more expensive judicial dispute (Freeman 1997). At least three subjects are almost always involved in the underlying issues: public entities, private commercial bodies, and citizens. Several jurisdictions have therefore devised participatory systems and practices by which the solution to problems is formulated in a preventative and collaborative way (Negotiated Rule-Making, Dispute Resolution Boards, Débat Public, Dibattito Pubblico).
The rules of behavior implied by these institutes, which contradict the adversarial logic of strategic posturing, can be summarized in the willingness to agree on provisional solutions subject to periodic review, and in the willingness to accept reciprocal interdependence and accountability on an ongoing basis, so replacing the traditional supervisory and control mechanisms. The agreed arrangements are no longer one-time transactions, but steps in a process, to be renegotiated periodically. These procedures are normally initiated by the public body with the appointment of a group of usually independent facilitators, charged with identifying the subjects to be involved, and mapping all possible dissenting instances. The negotiation itself takes place with the assistance of facilitators-mediators, which promote the widest possible definition of the problems to be resolved, and try to bring the parties to the agreement. Finally, if an impasse occurs, the public entity retains the power to override the procedure, to declare it closed and decide unilaterally.
The sustainability of the legal profession can be analyzed from two points of view. A first point of view is sustainability for the professional. It is probably true that for the highest income lawyers, the adversarial system is still the source of larger revenues in the short term. On the other hand, collaborative methods may be the lever for professional and marketing differentiation and, moreover, can probably lead to a higher level of satisfaction and reduced work stress for many, who would enjoy “renewed career satisfaction, easier scheduling and time management, renewed enthusiasm developing and applying new skill sets, increased client appreciation, and improved professional relationships” (Voegele, Wray, and Ousky 2007).
The second point of view is that of the broader social sustainability, or the legal sustainability for society, which is also expressed in the social function and profile of the legal profession. We are in a historic time in which, as a result of dramatic economic and environmental crises, the legal profession is reconsidering the fundamentals and the meaning of its role, and the moral and social implications of its activity. Using a resolution method that limits the social externalities of litigation, while at the same time achieving a Pareto-optimal solution in relation to all the parties’ needs, and so avoiding zero-sum games that increase spending without increasing substantive justice, seems to be one of the new priorities for lawyers.