Some of us lawyers will remember our firm's "Common Law Department" which, as I recall, was not always blessed with the harbour view.

Most of us these days will be more familiar with the "Litigation Department” or even more latterly, the " Dispute Resolution Group".

So, what’s in a name -- why this evolution? 

Is it a telling commentary on the way litigators have evolved themselves over the last 20 years?

Nowhere is the difference in perspective between clients and their lawyers possibly more striking than on the issue of resolving disputes. It would be quite wrong to say that most litigators ignore their clients end game but there is no doubt that some litigation lawyers do treat what they do as a process rather than looking at what they do from an outcome perspective -- after all litigation is not so much a product, really it is more of a process. 

So, how come we sell the litigation process rather than selling its end product, dispute resolution?

Consider parallels in the commercial world; Philip Morris does not market cigarettes as nicotine and Lux doesn’t market soap as lyre.  If they did, consumers would, I suspect, find their products less attractive. 

Think of it from your own personal point of view, if someone tries to sell you a program for weight loss as a 23 step process involving 126 calorie controlled meals, it's not nearly as attractive as selling you the product of your effort – lose at least 8 kg (and more!) with only three easy Visa payments of $39.99.

Surely it’s in our interests to give the people what they want—a solution, not one (of many) processes for getting there.

That's not to say we don't need the litigation process - of course we do - but what clients want is a law firm with a panoply of talents, including positioning disputes for early, cost-effective, participatory, go forward business orientated dispute resolution processes, like negotiation, mediation and mini trial.

Part of the answer to why we don’t do this is, I suspect, because of our ingrained preoccupation with culpability and liability and hence our focus on the process that best supports this kind of hindsight inquiry.

Litigation Lawyers

But ask any corporate counsel what they want in the “litigation department” who holds itself out as the expert fixer-upper of their corporate conflict and these days they will mumble words like ”...I want to be involved/in charge, cost-effective, value added and value (not necessarily time) based, result/future focused etc etc”.

It unlikely they will mention (at least until they have explored their preferred alternatives) the words "…damn good court lawyer who will guide us through the litigation process, who reports to us once a month by letter together with invoice and who will, through no fault of theirs keep us guessing on the result for about two years "

The odd part of all this is that most of us don't seem to respond to the strong distaste that our corporate clients have for litigation.  They seriously do see it as wasteful, unproductive, disruptive, distracting, expensive, time-consuming, inefficient, uncontrollable, unpredictable, confusing and frustrating.  They see the courtroom as a dangerous place.

So, if law firms really want to reflect this shift in our business community's requirements for dealing with conflict, they should call a spade a spade and stop calling their product "litigation " and stop housing it in a “litigation department”.

Too much? 

Try being the first in town to have a "Problem Solving Department"… and then watch your commercial partners scramble to join.

After all even the Universities are on to it…. a Californian Scool of Law has established “The Centre for Creative Problem Solving”.