Achieving better outcomes for clients is all about having better conversations, according to John Sturrock QC.
That is true whether the final outcome is achieved through litigation, arbitration, mediation or negotiation, he told LawTalk.
Mr Sturrock, a well-known commercial mediator from Scotland, was in Wellington in July as a keynote speaker at the annual AMINZ national conference. He attended the conference with support from the New Zealand Law Foundation.
“When we have differences, disputes or conflict … what we are looking for is outcomes that maximise value for our clients,” he says.
But he added, there is a “real danger” when “we default into settlements which certainly, traditionally, have produced outcomes which are characterised by zero sum: I try to knock you down, you try to knock me down.
“In the adversarial system, one of us might win and one of us might lose, although in fact often any victory is pyrrhic and therefore we all end up as losers,” he said.
“Paradoxically, achieving outcomes that maximise value for our clients requires us to help each other.
“If you are going to come to an agreement with me which is in your interests, I’m going to have to help you find something that works for you, just as the opposite is the case for you: you are going to have to find something that works for me.
“That is what consensual agreement is all about.
“In order to achieve that, to achieve these better outcomes, we need to try to understand each other – we need to find out what really matters: why is it that we have got to this place, how has it happened?
“So having a conversation is the essential component. If we communicate with each other, we understand what we need, what matters, how we can move forward.”
When conducting mediations, Mr Sturrock says, a common phrase he hears is “Why didn’t we have this conversation a year ago?” or “I wish we’d had this conversation before” or “I wish you told me this before”.
The lawyer has a “tremendously important” role in assisting clients to find a solution, Mr Sturrock says.
How can lawyers help? By understanding collaboration and negotiation and mediation better, and by educating their clients in the way these work and how they are likely to produce better outcomes for them, he suggests.
“Some of the best work I have seen by lawyers over the years has been in the context of really difficult mediations, where they have both represented the client and also built the necessary bridges with their counterparts and clients on the other side in order to make sure that their client received the maximum value.
“Rather than operating with a modus of concealment and provocative correspondence – traditionally a way in which lawyers have worked – lawyers see their colleague on the other side as part of the solution.
“They’ve got to communicate with each other regularly, frequently and collaboratively. There is a special meaning of ‘collaborative law’, but here I’m meaning collaboratively in the wider sense of working together in order to get a better outcome for their clients,” he says.
“There is nothing in co-operation with the other side which needs to be inconsistent with ultimately using litigation if you absolutely have to.
“The danger, I think, is that people are protective of the litigation position and don’t properly negotiate or collaborate, feeling that in some way they are disadvantaged.
“I think the opposite is the case. The very best, the most mature and enlightened lawyers will negotiate and co-operate as much as possible, even if there is a backdrop of litigation.
“What that doesn’t mean is that they disclose, for example, all their weakness to their opposite number in the first conversation.
“The litigation option is so rarely used in any event,” Mr Sturrock says.
And how do lawyers prepare themselves to be better equipped to provide quality service to their clients? As a general rule – he has not studied the New Zealand situation closely enough to offer a specific academic opinion – but it’s up to the law schools, he believes.
“We need to expand the education of lawyers beyond mere law, to recognising the multi-faceted nature of problem solving, and not be fixated on any particular approach.”
Lawyers need to be able to analyse all the options and present the best option for the client at the time. They also need to keep up to date with other disciplines that can provide insight into problem solving, such as psychology and neuroscience.
Indeed, the whole field of neuroscience is “essential”, Mr Sturrock argues.
“So much has been discovered, even in the last few years, about how the brain works. It is essential, whether we are lawyers or negotiators, to understand the impact of a multitude of cognitive devices which influence the way we think.”
That can help not only in the lawyer and mediator roles, but also with the clients. “Our ability to help them see these things can be hugely influential. An essential core to our development as lawyers is in our work with science.
“To be successful in assisting your client, he posits a couple of pointers: find the optimal solution, and identify the path to that.
“You need to know the law, but you need to know how we operate as people and you need to have a good ability to communicate.
“You need to be aware of all the dimensions of any human interaction, including negotiations, contracts, business relationships, communities and so forth,” Mr Sturrock says.
Risk for the profession
“The danger for lawyers is that we will get bypassed by those who understand these things. People can get access to guidance and help in other ways now.”
A good lawyer, then, is a student of people first, and a student of the law second, “because after all the law is just to serve people.
“The law is not an end in itself. The law has been devised as a means to regulate our conduct. Most times we don’t need the law, but when the law does come in, it has its rules.
“I think the danger for many centuries has been that law has dominated many disputes. The lawyers have, in a sense unconsciously, been paternalistic and often prescriptive in the way they have sought to help clients to solve problems, so clients are actually denied autonomy and choice.
“I think what we are talking here is a return to people, a return to self help.
“I think autonomy’s a great word – people enabled to make decisions about what, after all, are their own problems, with the help of professionals who have particular knowledge and skills, understanding, judgement and objectivity.
“In the way that western society has evolved, there is a sense in which you defer to the professional: the lawyer.
“What we are seeing here is an evolution and a restoration to individuals and groups of the ability to make decisions for themselves, with help.
“I think that is really important and a fundamental change which many of us in the professions are uncomfortable with. It is not the way we have grown up. At the same time, many clients prefer, sometimes, to defer to a third party.
“So autonomy and responsibility are two watchwords which would have their counterpart in the responsibility of the adviser to let go sufficiently to enable the client to make choices,” Mr Sturrock says.
The human psyche is “wired” to protect ourselves – as part of the fight or flight mechanism – and that can lead to defensiveness or even aggression.
And that, the AMINZ guest said, is detrimental to good conversation.