May 18, 2008
How did Humans first start resolving the Fist Fights of Life?
Ten thousand years ago, how did humans first go about developing formal methods of resolving disputes--and why did they do it in the first place? Listen to IDN's latest podcast interview by General Electric's Florence, Italy-based litigation counsel Mike McIlwrath. This is Mike's 26th interview with the best and brightest of the litigation-ADR international community, including U.S. trial lawyers with higher-end business clients. Not one program has disappointed us.
This week, Mike interviews respected American anthropologist Robert Carneiro on the "Evolution of Dispute Resolution". The Carneiro interview is an especially compelling IDN segment, and rapidly covers: evolution of the state, the orderly introduction of legal systems with formal methods of conflict resolution, dispute resolution in societies that have remained in clusters of small, autonomous groups, and conflict resolution's role in keeping larger groups together and productive.
The IDN segment got us thinking, and worrying. In our view, much business litigation--and in the U.S. especially--is a wasteful ruse of "going through the motions", and outright churning, often in cavalier disregard of both fact and law. Lawyering itself during the litigation process has lapsed into a cynical mix of untruthfulness and laziness. Even many clients think it's business-as-usual to join their lawyers in misusing the system ("the lawyers will tell me what to say" and "they keep telling me not to remember anything"). Suits which easily form the basis for subsequent abuse of process actions are filed every business day of the year.
Is demanding good faith in the good fight too idealistic? Can we at least evolve that much? One small step further? Litigation and ADR all over the world needs to be both streamlined and resistant to processed and packaged falsehood. Both lawyers and judges need to be proactive in making the terrain not only more business-friendly but increasingly economical, fair and honest for all participants, from Microsoft and Coca-Cola to corner shops and street vendors.
Think of it as real truth-finding done efficiently.
Like humans themselves, litigation, ADR and dispute resolution will always be aggressive by its nature and context--as it probably should be. Even sophisticated litigants need to vent. But it should be intelligent and aggressive--not a "game" for and by lawyers. A bloodless but honest war, with prompt starts and quick endings. That goal is still possible, even for American humans and their lost generations of lawyers, in this century. Think about that when you hear Mike's interview with Dr. Carneiro.
Posted by JD Hull at May 18, 2008 12:26 AM
You're quite right that we (the lawyers) have done much to create the hostile, expensive, game-like atmosphere. We can similarly undo it, but no one will show the soft underbelly first. ADR had so much promise, but gave in to the desire to more court-like, upon the lawyerly demands of lawyerly lawyers.
So who will be the first lawyer to come clean? And who will attend his funeral?
Posted by: shg at May 17, 2008 03:38 PM