I was inspired to write this by an interview published in Rzeczypospolita newspaper with Prof. Julie MacFarlane from the Law Faculty of the University of Windsor in Canada titled: “A lawyer cannot just be a brain on the stick [Polish title: “Prawnik nie może być tylko mózgiem na kiju”].
Among many accurate observations, Prof. Julie MacFarlane presented the manner in which the legal profession is now being practiced, which is much different than 20 years ago. Her observations obviously refer to North America; however, many phenomena she discussed can also be found in Poland. I don’t think there is a lawyer who has not noticed that the current way of how our assistance is used has changed completely. We are not the chosen ones who possess “mysterious knowledge”. The reason is not only that there are many more lawyers providing legal services in various forms, but first of all our clients today are differently prepared for our assistance and expect something different. We are not used today only to “fight fires” i.e. the typical post factum activity. The same standards are applied to our services as to other services on the market, namely they must be fast, cheap and effective (FCE rule). This is a sign of the times.
For our clients we are (or rather we should be) financial advisors, business trustees, architects of financial structures. We should predict the consequences and choose legal structures that are useful not only at the present moment, but which can be beneficial also in the future.
How does the above reflect on dispute resolution? A litigation lawyer is like a surgeon – always wanting to do surgery even though non-invasive treatment may also sometimes be effective. And here I can see a role for the modern lawyer. What is most important in a dispute between the parties? Apart from the financial element, also the time and quality of adjudication. Therefore, our activities are necessary both before the dispute emerges (e.g. proper drafting of an agreement regarding dispute resolution) and should the conflict occurs, we are to effectively “manage the dispute”. However, very often there is no alternative for the client but: “we must go to court”.
One must know that apart from the common courts, there exist institutions which may help solve a conflict situation even more quickly, cheaply and satisfactorily. Wherever possible, a client should be offered various methods of dispute resolution, the alternative methods should be popularized, including the wider use of arbitration or mediation.
Prof. MacFarlane has noted the increasing significance of mediation in the U.S.A. and Canada and emphasized that, for example in Ottawa, within 60 days of the filing of a statement of defense, the case is obligatorily submitted for mediation, and only a lack of agreement then forces the court’s involvement. It is a simple way to popularize mediation on the one hand and provide relief to the courts on the other.
I would like to use an example from our environment. We have read a lot recently about the situation in the construction sector and the wave of bankruptcies of companies involved in motorway construction. This blog is not the place for a detailed analysis of this process. However, one must bear in mind with the motorway construction contracts, that in relation to the companies’ execution with the National Directorate of National Roads and Motorways (GDDKiA), despite the model provisions of FIDIC construction contracts, the arbitration clauses or the provisions on the submission of disputes to the Dispute Adjudication Board were removed on a large scale to the benefit of the common courts. As a consequence, lots of claims against the State Treasury were filed with the courts, which in many cases made it impossible to recover the debt in a reasonable time, and what follows, caused a loss of financial liquidity of companies. However, it arises from the available data that inIrelandorGreat Britainthe number of disputes solved as early as on the DAB level has reached approx. 90 percent. Is it possible then to solve such disputes? Indeed it is. Therefore, the signal “we must go to court” should sometimes be replaced with “let’s discuss the issue”.