A changing marketplace, an access to justice crisis and an increasingly informed client that is unwilling to accept paternalistic legal advice are among the reasons underlying the need for radically different conflict resolution processes.[1] But lawyers have been slow to change, which can only be fully explained by examining the financial incentives that serve to reinforce current practice norms. The task is not only to see that “[b]oth publicly and privately in our culture, lawyers are more often associated with conflict than with conflict resolution […]”[2], but also to understand the interrelationship among this perception, the broader economy and the billable hour. To motivate the profession to break from the status quo and find ways to ameliorate access to justice concerns depends on providing lawyers with adequate financial incentives to resolve disputes in new and creative ways: “[w]e need a billing system that rewards successful settlement initiatives.”[3] Settlement counsel (“SC”)[4], collaborative law (“CL”)[5] and mediation liberate lawyers from practice standards that weigh on the traditional retainer. These dispute resolution models are not mutually exclusive to the litigation process – they are supplemental services that come at a cost and it is in this that we find the financial enticement necessary to motivate lawyers to participate differently in the resolution of conflict.
This paper will consider how growing wealth inequality has informed the emergence of larger law firms and made lawyers less affordable. It will then argue that the access to justice crisis has been exacerbated by these two trends and that efforts to identify non-market based means of making legal services cheaper and more widely available are ill fated. The tension between the billable hour and the cost effective settlement of disputes is examined together with the absence of viable fee and funding alternatives. Lastly, the liberation of lawyers from the role of litigator is identified as the defining characteristic of SC, CL and mediation. These dispute resolution models offer sufficient economic reward for lawyers to assist in the cost efficient and early resolution of disputes, which will ease the pressure on the judicial system and enhance access to justice.
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