Disruption and our changing landscape
We are at a tipping point in our society, both here in the UK and elsewhere (if not everywhere) in the world. The last 18 months have seen the impact of Covid-19 and the Black Lives Matter movement challenging the systemic discrimination imbedded in so much of Western society. We have been witness to countries ravaged by heatwaves, wildfires, floods, and water shortages – all during this northern hemisphere summer. Humanitarian crises are everywhere: South Sudan, Nigeria, Mozambique, Ethiopian, Syria to name only a few, and of course now the attention of the world has turned to Afghanistan again.
We have no processes or precedents for the variety of issues the world is facing. No economic modelling or blueprints that can readily guide us on how to move forward. We are all trying to improvise and respond to new data – almost daily.
a. The future is uncertain in terms of the lasting impact of the above issues:
the effect of the Covid 19 virus on our physical and mental health and the global economy;
b. the depth and permanence of changes made in response to the protests in America and around the world – protests that now have such universal support they cannot be ignored by those in positions of privilege and power;
c. the reality of climate change and the almost daily evidence of the significant long-term impact it will have on our lives and well-being;
d. The ever-growing migrant and refugee issues that are everywhere in the world, Afghanistan being the most recent but sadly not the only such crisis.
What is certain though is that all these issues carry with them the inevitability of increased conflict across the plant. If we are willing to die for our ideologies, imagine what we will do for drinking water?
The Covid-19 crisis will continue to see insurance claims for loss of revenue, force majeure arguments in commercial contracts, increased investor-state arbitration, airlines suing governments for imposing quarantine regulations restricting travel, and more. There are literally billions of pounds of unpaid commercial rent arising from the various lockdowns in the UK alone that needs to be addressed.
Following the death of George Floyd, we saw increased tension with law enforcement in some areas, curfews in U.S. cities and the army on their streets, attacks on public monuments, and a ground swell of people of all nationalities and ethnicities saying enough is enough. The same following the Capitol Hill riots. By any reasonable measure of public sentiment, it seems clear this movement is not going to fade away.
Then there is the issue of water shortages in the Middle East, Africa and now America where the federal government has declared a water shortage on the Colorado River and the Las Vegas Reservoir, fed by the Hoover Dam, is at its lowest level since the Dam was built in the 1930s (35% and falling). While the issue has been around for centuries it may soon be the biggest source of conflict on the planet. Supply chain and other resource issues will follow but not to the same magnitude and not with the same catastrophic effect.
There is significant change everywhere we look. Most humans do not deal well with change. We are creatures of habit and fearful of what we do not know nor understand. This fear and uncertainty lead to increased conflict. People, tribes, and societies will feel the need to protect themselves, their way of life and their identity. The dominant culture will resist change and ceding power, the discriminated and dehumanized will insist upon it.
Around the world the courts will see a sharp increase in litigation because of economic pressure, challenges to the status quo and the testing of unchartered waters as we navigate our way through change and the “new normal”. So too will the arbitration market. Already strained court systems will come under increasing pressure.
In the UK, all of this before we even discuss the high likelihood of increased disputes and litigation arising from Brexit.
Legal Profession’s Role
So where do we – the legal profession – sit in all of this? What is our role moving forward? To make hay while the sun shines?
Do the barristers among us rub our hands with glee and make plans for a second holiday home (perhaps in Spain – I hear their holiday spots are in trouble)? This is the silver lining embedded in the current crises we face, is it not?
Maybe not. Now might be the perfect time to remind ourselves why we are truly here and what we lawyers can contribute to the world. Scratch around in our past and it turns out that our role moving forward is the same as it has always been. Many of us have just forgotten what that is.
In 1983 at the American Bar Association Midyear Meeting, then-Chief Justice Warren Burger told the audience that the original role of lawyers was to heal social conflict and that it was time to embrace that role again. He asked: “Should lawyers not be healers? Healers, not warriors? Healers, not procurers? Healers, not hired guns?”
Chief Justice Burger was not the first legally trained public figure to make that point.
Mahatma Gandhi put it this way “I understood that the true function of a lawyer was to unite parties riven asunder.”
And perhaps most famously of all:
“Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.” Abraham Lincoln
Those observations do not sit comfortably in our identity politics blame based culture, which is heavy on self-righteous anger and low on compassion, high on individualism and low on genuine connection. The practice of law has modelled itself on this cultural attitude. Of course, that is not true of all lawyers and all aspects of legal practice – I am generalising to make a point. But it is a fair point.
Are we using the best tools available?
Litigation remains our predominant response to dealing with significant conflict. Mediation, which promised so much 30 years ago (and still does) has not got the traction it deserves. While the sophisticated users of mediation know it and use it well (insurance companies, large corporates, multi-nationals, franchisors), the uptake amongst the majority of those in conflict has been poor. Mediation in many respects has stalled in its development. Why is that?
In part this is because of the way we mediate which is limited in scope – most mediations are still run on the traditional one-day model. That model has not changed since mediation was first introduced into the dispute resolution market.
The model works very well for litigated disputes but what of the conflicts arising from the issues discussed in this article, many of which have significant social and political components but are not suited to a litigated process?
While it is encouraging to see the Master of the Rolls so active in dispute resolution and its integration with the court system, and the Civil Justice Council’s recent report on Compulsory ADR, these global issues are not going to be resolved for the benefit of all humankind by litigation. Of course, some aspects of these conflicts will go to the courts or into the international arbitration process for determination, but those will be for remedies specific to the litigating parties, not resolution of the whole.
What do we do about the resolution of the increasing number of long-term resource issues that are now cropping up and will be here to stay (drinking water, access to healthcare, and food supply)?
What about the crisis to end all (literally) – climate control? Our approach to that cannot simply be litigation (aspects of it of course can be litigated –ESG is an example). But as Ken Cloke said: when you are all in the same boat and that boat is sinking there are no winners, only losers.
Litigation or even the mediation of litigated disputes that deal with parts of the whole is not the answer. But an expanded view of mediation as a collaborative, facilitated discussion that takes place over days, months or even years may be a huge step in the right direction and one that lawyers as the healers of social conflict can take. Call it a facilitated, interest-based conversation if it needs a name.
Why has the early resolution of disputes using a multi-day facilitated negotiation model not gained traction? It has found a home in peace negotiations. So why are we not facilitating more debates involving all the stakeholders that have an interest in issues of significant public policy? Like systemic discrimination, water shortages, refugee, and migration issues?
Is self-interest the answer? If something is happening to “them” (you can interchange who “they” are depending on the crisis you are looking at) is it all too easy, even in this age of awareness and enlightenment, to simply say: not my problem? Shortage of water in Ethiopia – not my problem. Afghan citizens so desperate to escape they cling to the undercarriage of aircraft that are getting airborne – not my problem.
Litigation is well suited to our identity-based approach to conflict – making conflict an argument resembling a war to be won or lost at all costs. But is that the right approach? The three quotes refered to above suggest not.
Global issues of the magnitude we are discussing here cannot be allowed to go unresolved or to result in armed conflict and must be resolved for the benefit of humankind. If that does not happen there will be no winners, only losers. For example, while armed conflict may “settle” a water dispute in the short term it will not address the underlying issues of scarcity and an ever-growing population that needs access to drinking water and water for crops. Meaningful dialogue and collaboration are the only way to address issues on this scale to find viable solutions to the problem, which are not regional but global. They are not us and them based but “we”.
With all that has happened in recent months around the world, and all that is yet to unfold, now is the perfect time to look for opportunities, new beginings and to revisit the origins of what it means to be a lawyer.
We need to embrace the role we lawyers can play as the healers of social conflict. We are in the dark and we need a torch.
By Paul Sills, Arbitrator, Mediator, Barrister