Disputing Culture: Australian Lawyers and ADR

Contents

• Introduction
• Law and culture
• Changing legal culture?
• Birth of a culture
• Conclusion
• Notes

Introduction

“… it is the mind-sets of lawyers and judges which are the greatest impediments to change aimed at increasing [the civil justice system’s] fairness …”[1]

“It is especially frustrating to face the protean allegations that an anti-social culture of mindless combativeness pervades practitioners’ approach to litigation, and that this culture is the chief obstacle to the achievement of efficiency. The implication that such instincts (if they exist) can be re-engineered in some unexplained way is equally frustrating.”[2]

1. Here are two contrasting views on an important question: Are lawyers’ mindsets one of the “chief obstacles” to civil justice reform and the introduction of alternative dispute resolution processes (ADR)? To answer that question we must we pin down those mindsets and discover whether they are changing or not.

2. In this paper I attempt to identify the legal mindsets that may inhibit civil justice reform and to review and analyse the evidence for any change in them that may be occurring. I will use the concept of culture as a framework for analysis and will first explore the many uses to which this concept has been put, as applied to society generally and then law particularly. Then I will apply the concept to help analyse the available information on how lawyers think of themselves and their role in society and how common patterns of thinking may be changing.

3. Based upon my survey of lawyers in Western Australia[3]

   and similar findings of others around the world, I believe that there is change in lawyers’ thinking about ADR. However, several questions remain. Numerous studies, including my own, show that most lawyers are favourably disposed towards alternative dispute resolution practices. Yet, other studies indicate that the majority of them do not voluntarily choose these alternatives when they are offered. Similarly, legal education now increasingly incorporates instruction in alternative processes such as mediation. Yet, studies show that such education does little to encourage students to use those processes when they become lawyers.

4. What then has changed and what has remained the same? In this paper I seek some answers to those questions. In doing so I will canvass studies of lawyers’ values, attitudes, beliefs and practices which support the suggestion of a change in legal culture. In conclusion I will consider what such a change signifies for the future of the civil justice system.

   Law and culture

5. The concept of culture is ill defined and has been used in numerous disciplines to describe phenomena ranging in scale from international to familial. I will first briefly review some of these uses of the word then I will try to clarify what we might mean when using it in relation to legal actors, institutions and practices, distinguishing it from the term ideology.

6. As a concept culture has what can be described as a checkered history in modern thought. Co-opted by nationalism it has been wielded as a sword to combat difference and diversity. Transmogrified by Marxism into society’s superstructure it became a mere placeholder for the utopia to come. In the former case it was misidentified with institutions and in the latter with ideology, thus being reified from one direction and dematerialized from the other. The anthropologist Clifford Geertz would have us recognise that culture has both material and immaterial elements – including both concrete practices of human action and the investments of meaning with which they are accompanied. I believe, along with Geertz, that the concept of culture remains redeemable for worthy use despite its unfortunate history.

7. The study of culture as applied to law must still take account of Weber who proposed a system of types with which to identify and classify legal regimes.[4]

   He drew attention to the special role of law based on elaborate judicial procedures in modern, tightly organised bureaucratic Western states compared with systems of justice in other times and places. Weber recognised the tensions inherent in modern Western procedural legalism and was uncertain what the future might hold for men and women in the “iron cage” of their rational law.

8. Other twentieth century scholars have directed their attention to variations within the modern Western legal tradition, studying civil law and common law regimes as exemplifying two vying legal cultures.[5]

   This discourse has largely proceeded on the abstract level of analysis of the conceptual systems adopted by these traditions; however, more recent comparativists have begun to look for significant differences in practices as well. It may be that the comparative approach remains somewhat influenced by the association of culture with nation, whether by accepting or rejecting it. Geertz suggests that we neither dismiss completely nor accept uncritically the role of state institutions in forming law as culture.

9. At the micro scale some have advocated the concept of a “local legal culture” which may be salient within a restricted area of a larger legal system. Such a concept has been used to explain patterns of difference in legal practice within common legal forms. The concept of culture in such settings has however been challenged as an explanatory mechanism. These researchers identify overlooked structural elements in local legal systems as the significant causal factor for local differences in legal practice.[6]
10. The concept of culture has been applied to legal practices spanning a wide range of activities. For some, the common law is essentially embodied in an “adversarial legal culture” that crosses national boundaries.[7]

    For others, recent decades have seen the birth of an “ADR culture” in the United States that has begun to flourish in many jurisdictions within and without that nation. Still others distinguish more specific instances of the turn to alternative dispute resolution processes by postulating the existence of “mediation and arbitration cultures” in distinct localities.[8]

11. What this brief review makes clear is that the concept of culture has been used in a variety of ways and settings by scholars interested in law. Many of these researchers have not explicitly stated their view of the meaning of the term or the source of its explanatory power. One consequence of this lack of articulation is that culture as a concept has become confounded with other related ones such as ideology, institutions and traditions.

12. For Clifford Geertz culture is a complex of signifying symbols that mediates meaning for the individual in a particular context.[9]

    It is a dynamic, relational concept that tries to do justice to the social-psychological nexus in which myriad influences shape how an individual makes sense of herself and her surroundings. Culture is what informs the answer to the question, “What is it to be me, here and now?” Since that “here” and “now” continually changes the answer also changes, reflecting change in personality or social circumstances or both. Thus, the culture an individual identifies in identifying himself is a dynamic selection of signifying elements most salient at the moment. It is also a contextual expression of meaningfulness tuned to the situation in which the individual finds herself.

13. Geertz cautions against a view of culture as a concrete system either congruent with social realities and thus “functional”, or out of step and thus “dysfunctional” or in decline. Just as the human being is a congeries of strengths and weaknesses, potentials and susceptibilities, so shared complexes of symbolic meaning can exhibit discontinuities and disruptions, inconsistencies and incoherence without necessarily being “pathological”. A vital culture thus exhibits the potential for, and actuality of, change. Culture, in Geertz’s view is therefore a partially indeterminate but nevertheless useful concept framed by human practice and the meaning which individuals read into it and from it.

14. If Geertz’s approach is adopted it becomes somewhat clearer how the concept can be used fruitfully in the study of legal systems and practices. To emphasise the role of culture as a mediating mechanism between the individual and her surroundings is to both broaden and make more specific the object of study. Culture in this sense is broad enough to encompass ideology, institutions, traditions, mores and much more but it is also specific in the sense that the focus is on the role of culture in establishing an individual’s identity and self-conception in her social environment. So it is unwise to assume that culture is expressed only in material conditions and influences or only in ideal patterns of thought and behaviour. Both interact to shape the experience of meaningfulness experienced by individuals as parts of a larger whole. Following this approach we might say that the concept of culture entails the subjective impression that ones true nature and worth, ones proper place in the world, are intertwined with ones culture. If that level of salience of engagement is not reached then we may say that questions of culture do not arise (but psychological questions may). Similarly, if we speak of trends or activities which do not appear to cause any concern in individuals for the effect on their roles or place in society then again we should probably not speak of culture (but sociologists and economists may nevertheless be interested in these matters).

15. If we adopt Geertz’s approach to culture when studying legal actors and practices we must then begin with the question whether the phenomenon in which we are interested calls into play subjects’ conceptions of themselves as part of a larger social framework. The scope of legal culture will thus be potentially variable depending on subjects’ appreciation of the breadth and depth of their relations to others implicated in the object of study. A legal culture might thus be wider in scope than the bounds of the formal legal profession for some purposes and narrower than the immediate territorial legal jurisdiction for others. Similarly, culture should be distinguished from ideology that plays only a contributing role in forming conceptions of self in society. I will take it that ideology refers to explicit descriptions and analyses of the workings of society and of the individual’s place within it – that is as the product of specific ontological and epistemological concerns. This will mark ideology off as an essentially descriptive system and distinguish it from normative elements embodied in mores, traditions and express law that also contribute to culture.

16. With this view of culture in mind the relation of culture to professions may be more easily seen. If the institutions, ideology and practices of a profession attain the level of salience for its members that individuals’ self-conceptions or identities are intertwined with them we may then speak of a professional culture. One test is to ask the question, “How do you characterise yourself?” If the answer is, “As a professional – as a lawyer” then a professional culture is evident. Perhaps it is one of the defining features of a profession that it has the impact of a culture on its members.

17. We are now ready to assess the evidence for the existence of a mindset amongst lawyers – a legal culture, and its relation to the norms, ideas and practices of alternative dispute resolution. Others have taken up the question of ideologies of alternative dispute resolution but few have approached it from the perspective of culture.

    Changing legal culture?

18. What counts as evidence of a legal culture and of cultural change? If we follow Geertz we must look beyond practices and institutions, mere behaviour, and inquire into the subjective perspective of lawyers. It is not mere participation in the affairs of working life that counts but the meaning an individual gives to and receives through those commitments and connections. That meaning can be expressed in many ways – through adherence to an ideology and through beliefs, attitudes and values that help lawyers identify themselves as professionals with a special role in society.

19. Subjectivity can be explored in a variety of ways including ethnographical participant-observation, the study of biography and autobiography, engaging in participatory action research and by phenomenography. More prosaic survey research is also productive if questions are formulated carefully after scouting the terrain of possible meaning and with proper attention to recognised confounding effects. In depth interviews provide opportunities for close examination of individuals’ meaningful relationships to supplement broader inquiries of large numbers of subjects.

20. There is now a sizeable number of recent surveys of lawyers in which to look for possible evidence of a culture in the process of change. This research, conducted within the past decade, has largely focussed on evaluation of new programs for resolving disputes. Data accumulated from these sources includes rates and modes of participation in alternative processes, and measures of levels of satisfaction with them. There has not been much attention paid to investigating lawyers’ views about how those ADR activities do or do not play a role in shaping how they think of themselves as legal professionals. My survey of Western Australian lawyers was directed more explicitly to that question. Studies conducted without a specific cultural focus can however, I believe, nevertheless yield some insights into the possibility of an emerging new disputing culture.

21. In seeking evidence of culture we are looking for complexes of meaning which operate beyond the internal, psychological level. Culture is by our definition not personal but interpersonal and is not bounded by material conditions such as age, location, or education although it may take account of and help to give meaning to such contingencies. Because it appeals to our sense of self in society on many levels and in a range of contexts culture can be shared by individuals despite their undeniable personal uniqueness. One strong clue to the existence of an identifiable culture may therefore be shared conceptions, attitudes and beliefs amongst people otherwise differentiated in their personal circumstances. Thus, if it is observed that both criminal and business lawyers, sole practitioners and large firm partners and urban and rural lawyers have the same attitudes, beliefs or values in relation to their work we may speak of a professional legal culture.

22. A decade of survey research into alternative dispute resolution consistently demonstrates favourable opinions toward alternative processes amongst lawyers in English-speaking countries. The response of Western Australian lawyers to my question, “Should any disputes go through dispute resolution processes which do not involve a judge’s binding decision?” echoes these results. The vast majority (98%) of legal practitioners who responded to my survey said “Yes”. Other studies that have yielded similar results include the following:

    • In 1993 researchers studying an American out of court mediation program for libel actions concluded:

      A majority of both plaintiff and defense attorneys interviewed thought the program would provide a hearing that would be as fair or fairer than a trial, would save their clients time and money, and would produce an outcome favorable to their client.[10]

    • A 1993 survey of 246 in house legal counsel for large Unites States corporations and the outside lawyers they dealt with found that 83% of the former group and 75% of the latter planned to increase their use of ADR in the future.[11]

    • Eighty percent of over 1000 California lawyers who participated in a study of the future of the legal profession agreed with the prediction

      Parties and lawyers will rely increasingly on alternatives to litigation to resolve their disputes.[12]

    • Researchers in the American State of Indiana who studied the attitudes of lawyers toward mediation concluded in 1994 that “civil mediation has become an accepted part of the legal landscape” in that jurisdiction.[13]

    • An evaluation of court-connected mediation in the Canadian Province of Ontario found in 1995 that “very high numbers of lawyers indicated that they considered ADR to be ‘a good way to handle a significant number of cases'”.[14]

    • The RAND study of experiments in alternative dispute resolution processes in American federal courts reported in 1996 that

      Participants in these ADR programs are generally supportive of them. Most of the lawyers felt that the programs are worthwhile in general as well as beneficial for their individual cases.[15]

      Notes

      1

      G L Davies, “Fairness in a Predominantly Adversarial System”, Ch 7 in Helen Stacy and Michael Lavarch, eds, Beyond the Adversarial System, Sydney: Federation Press, 1999, 102.

      2

      Bret Walker, “Judicial Time Limits and the Adversarial System”, Ch 6 in Helen Stacy and Michael Lavarch, eds, Beyond the Adversarial System, Sydney: Federation Press, 1999, 88.

      [3]

      For the questionnaire and analysis of responses see Archie Zariski, “Lawyers and Dispute Resolution: What Do They Think And Know (And Think They Know)? – Finding Out Through Survey Research”, available at: http://www.murdoch.edu.au/elaw/issues/v4n2/zaris422.html.

                             

      Archie Zariski

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