You will know of the analogy of the frog in the gradually heating water which, unaware of its changing environment, is unable to do save itself when the water gets too hot. I believe that, if we wish to survive and thrive, we do need to acknowledge that we are living in a rapidly changing world, where our traditional ways of thinking and doing things are being challenged and where what has changed will not change back.
This was the thrust of a speech I gave at the Civil Justice Reform in Scotland: Beyond the Gill Review conference in Edinburgh yesterday.
The speech, ‘Alternative Dispute Resolution or Gill, Genn and Gandhi’ argues that we are moving into a new era. Just as we moved from dispute resolution based on trial by combat to dispute resolution based on trial by jury or determination by a judge, there is a shift towards a post-litigation culture around the world where people seek and will find different ways of dealing with disputes.
I sense that traditional physical courts may tend to decline, and that litigation as we know it may tend to wane. Negotiation and non-litigious dispute resolution will expand in their many forms. Online Dispute Resolution is now very significant for millions of disputants; risk management and dispute avoidance will become much more prevalent. In more stringent economic times, just as in the NHS, we will need to invest in prevention rather than cure. Those who continue to adapt and support clients in these developments will prosper.
But there is nothing new or prophetic here; we are simply rediscovering that which lies at the heart of all good lawyering:
"I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men’s hearts. I realized that the true function of the lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby – not even money, certainly not my soul." Mahatma Gandhi
Or as Abraham Lincoln put it: "Discourage litigation. Persuade your neighbours to compromise whenever you can. As a peacemaker, the lawyer has superior opportunity of being a good man. There will still be business enough."