(This is an excerpt from a research project and discussion paper [ADR and the Crown Counsel: Talk or Walk?] commissioned by the Canadian Federal Department of Justice, Ottawa (1994).

A CHALLENGE TO CHANGE

This working paper is about paradigms and transitions.
 
The word "paradigm" is derived from the Greek word, paradigma, and means "pattern, model, example." In contemporary jargon, it has acquired a special meaning, namely, the patterns or models that describe the structures within our minds and thoughts as we look at the world around us -- that is, our "personal filters" or "mind sets". 

Our mind sets are to our minds as eyeglasses are to our eyes: If we wear rose coloured eyeglasses, it is important for us to know, when seeking to understand our worlds, that things may appear to be rosy for no other reason but the fact that we are wearing rose coloured lenses.

Often, we are not at all aware of our own glasses, our paradigms.

The word "transition" has a Latin root, transire, which means "to go across, to pass through". In the context of what follows, it refers to the necessity of passing through or transcending our existing mind sets.

Personal transition is a very difficult process for most people because it demands a willingness to re-examine personal circumstances, values, priorities and beliefs and a commitment and willingness to change them, to transform ourselves in the process, if need be.

For lawyers, in particular, paradigms and transitions are very difficult: because they implicate us in a re-examination of our professional beliefs, values and priorities and demand an openness to change them after we have invested a great deal of our own time, energy and money in ideas about the law that have been with us for many centuries.

The reader -- particularly if s/he is a lawyer -- may find some of the ideas we will explore in this paper to be a bit too radical or too revolutionary for her/his palate. Whenever that thought arises, I ask you to pause, ensure that you remain open-minded and refer back to these few words and reflect upon the ideas under consideration in the spirit of this challenge: I have chosen the word "challenge" very deliberately, and I hope what follows will not disappoint you.  

THE LEGAL SYSTEM THEN AND NOW

Let us consider why we have a legal system. Ultimately, because we must somehow organize our affairs in order to find ways of getting along with each other while we march in our many and diverse ways...each "according to the beat of his own drummer".

The legal system is at the very heart of what we, as society, have done to organize ourselves: Courts are a safety valve to which civilized people can resort when things break down or don't function well.

But, what has happened in the English speaking world since the beginning of the Great Depression?

There has been a tremendous increase and advancement in economic substance and intellectual activity -- particularly since the end of World War II. The repercussion has been an enormous increase in the proportion of the population who, by reason of their intellectual and economic freedom, now have an opportunity to participate and interact with others and with the highly developed institutions we have created.

There has been an explosion in population and, accordingly, in the sheer number of people who are involved in the functions and interactions of society; there has been an exponential increase in the complexity of society and of the rules and regulations by which it is managed and governed.

In simple numbers, the volume of legislation, regulations, resolutions, Orders-in-Council, rules, bylaws and judicial and quasi-judicial rulings is staggering:  Hardly anything now occurs in the realm of human activity which, in some way or another, is not governed or affected by some law passed by Parliament, Legislature, Regional Government, Municipal Government, Boards, Tribunals, Courts, etc.

These increases in societal and human interaction have spawned a prolific increase in the incidence of conflicts, disagreements, differences and disputes arising from such interaction -- and these disputes have been assigned to our legal system for management and control...particularly as there has been an increasing acceptance of the proposition that the Courts are the foremost -- if not exclusive -- resort to which recourse may be had in resolving disputes. As the popular song well said it, "Sue me, sue me...what can you do me!"

With the proliferation of people, laws and conflicts there has been an incredible multiplication of problems and, accordingly, a tremendous increase in business for our Courts -- much more than they can handle or were designed to manage.

What has taken place is a tremendous increase in the volume, variety and complexity of conflicts and disputes in society, and our mechanism for handling such problems is simply incapable of managing them.

Just 50 years ago the world was much simpler; there were many fewer laws;  there were fewer people; the proportion of people engaging in activity likely to lead to conflict was much smaller; indeed, it was said that the Law was a "rich man's Law" (which, for different reasons, may equally be true today) and there were fewer "rich" people.  The legal system was adequate to cope with the demand...unless Charles Dickens has persuaded you that such was never, really, true.

As society has become more varied and complex, the need for processes adequate to handle volume, variety and complexity has become much more pressing -- but we have not given much attention to this need.


EVOLUTION OF IDEAS ABOUT LEGAL SYSTEMS

Most of our current thinking and perspectives about the legal system come to us from ideas which our ancestors began to explore many centuries ago, probably as far back as Magna Carta.

In those times, disputes were resolved by wagers, ordeals and trials by battle which were intended to invoke the assistance and influences of Providence in resolving disputes. Fact finding or informational processes to determine the rights and obligations of the parties were unheard of; indeed, there was no such thing as evidence or evidentiary processes.

These dispute resolution mechanisms emphasized not a search for truth -- except, perhaps, in the Divine sense -- but for the victory of might over right.

Juries were impanelled, but their function was to determine, interpret and invoke the dispensations of Providence. It was much later in the development of these processes that juries began to make their determinations not by relying on their own interpretation of God's Will, but on the basis of such relevant facts as might be established. 

The processes and laws of evidence and, later, ideas about proof and fact finding evolved from these early ideas about jury trials and by borrowing ideas from Roman law and Biblical and Talmudic sources.

Juries deliberated under the supervision of judicial officers. From these judicial officers and, again, Biblical sources, evolved the idea of a judiciary and the office and function of a judge as we now know it.

By the time Sir William Blackstone published his Commentaries on the Laws of England in 1769, kings had delegated some of their "Rights Divine to govern wrong" to judges, the common law had substantially evolved, Ecclesiastical Courts had come and gone, and a judicial system focused on fact finding, evidentiary rules and ideas about proof had evolved.

The public had also experienced and suffered the misadventures of Star Chamber and new ideas about legal process and procedural justice and fairness were reasonably well developed.

This needs to be a simplistic overview of the development of our legal system and is intended only to remind us of our roots.

TRIAL BY BATTLE

It is clear that, at least in the English speaking world, we are deeply committed -- if not absolutely addicted -- to the notion that people who have a conflict or dispute must engage in an adversarial contest or competition in order to resolve it. The fact that we entertain this idea is not mere accident, but the consequence of historical events and processes: "Trial by Battle" has been and continues to be the underlying premise of our legal system, its operative paradigm.

Of course, we no longer continue the practice literally -- the carnage would be staggering if we did so!  But, because we believe we have become more "civilized", we have established a legal system to which the parties may submit their disputes rather than doing so in hand to hand combat. And, because we have become more "civilized", we no longer hire knights, we hire lawyers -- who undertake, more or less, exactly the same kinds of assignments that knights did!

Indeed, my own experience tells me that people involved in a legal conflict or dispute search out representation on much the same basis as people, in the past, sought out a suitable knight: the toughest, most sanguine, most competent lawyer that money can hire. The fact that lawyers are perceived as "hired guns" is, also, not a mere accident.

This most pervasive paradigm about our legal system was described in a recent letter to the Editor of The Globe and Mail as follows: "...the adversary system is the greatest engine for seeking truth ever devised when applied to individual human beings and their interaction with society...and thus...must remain sacrosanct..."

This idea represents the prevailing wisdom concerning our legal system. Any discussion concerning what has been called (improperly, as I shall later clarify) Alternative Dispute Resolution must begin with a consideration of the colour of our lenses when we make statements like that: The compulsion to maintain the sanctity of this paradigm is largely responsible for the existing mess and feeds the present crisis of confidence in our legal system.

Contemporary realities are not the realities of the late 17th century and the "adversary system" no longer works well... even if it once did.  Today's realities are vastly different: We live in a complex, technological/information environment and, in this environment, the "adversary system" only increases confusion, dissatisfaction and frustration among those having disputes that need be resolved. 

I need to be candid about my own biases and perspectives; I have been thinking about these ideas concerning the law for some time and have formed what I trust is a "considered" opinion, namely, that the "adversary system" is not at all a "system": It is a mind set -- a paradigm -- which controls the attitudes and perceptions of people involved in a legal dispute. It accurately describes the colour of the lenses that we wear as we look at our legal system and its processes.

The "adversary system" fosters antagonism, confrontation, win/lose strategies and the victory of the powerful over the less powerful; the pursuit of justice in today's reality requires cooperation, collaboration, win/win strategies and creative thinking in the process of negotiating resolution of disputes.

"Trial by Battle" embraces two "sacred" and fundamental ideas which, in themselves, define the "adversary system", namely, (i) that an adversarial, antagonistic, confrontational or competitive stance best serves the interests of the people involved in a dispute, and (ii) that a Judge (or third party) who has the power to impose a resolution is an essential component of the process -- which means that disputants must become enemies and that a third party must find a resolution...or, as it has been said, that each party proposes to a judge who disposes.

I want to indulge in a penetrating glance into the obvious.

These ideas about dispute resolution were formulated before the printing press was invented and became canonized before photography, before telephones, before electricity, radio, flight, television, computers, electronic highways...

These ideas about our legal system -- and all their corollaries -- are based on some very specific assumptions about control and communication of information, access and rights to information, need for information and methods of securing information. 

These assumptions are in need of substantial reconsideration. In the world of legal affairs, the time has come for us to let go of old paradigms that limit and constrain us and to move on to new ways of seeing and thinking. The time has come for transition to a different way of thinking about the legal system and its processes.

TOWARDS A NEW VISION

Our legal system is in crisis -- a crisis of confidence -- and frustration is evident everywhere. According to the prestigious Center for Public Resources of New York, there now exists a consensus in North America that litigation is "Too much, too time consuming and too expensive"; a poll commissioned by The Law Society of Upper Canada in the Province of Ontario in 1992 found that “85% of the public favour the use of alternative methods to litigation to resolve disputes" and that "clients want to avoid the high costs and delays of litigation".

There are terrible wastes of time, money, resources and energy in our legal system and they seriously affect the working of the largest litigant in the country: the government. How we got into this mess and how lawyers responsible for how this mess affects government, in particular, is the subject matter of the balance of what follows.

This paper asks questions about our legal system and what we do as lawyers, that have not been asked for a long, long time. I trust you will not be surprised if I cannot provide the answers: What we must do is work together to begin to discover them. As you consider what follows, bear in mind that my views about the legal system and ideas about modernity constitute my fundamental challenge to you as my reader.

NEW IDEAS ABOUT SYSTEMS

The most radical changes that have occurred in our lives since the end of the Great Depression have evolved from lessons learned in the Allied war strategy rooms during World War II. I am referring not so much to Albert Einstein and Enrico Fermi, but to something even more important insofar as the subject matter under consideration is concerned.

In the research, strategy and "game" rooms where the war effort was observed and planned, researchers began to notice very surprising events; they began to discover that, from broader and larger perspectives of events -- looking at the "war theatre" rather than the local battle, skirmish or exchange -- unrelated events were apparently happening with amazing predictability and regularity. 

If a given event took place at, say, point X, then with no apparent explanation or connection, a specific event concurrently happened at, say, point Y: if someone hit Bob on the right hand then, for no apparent reason, Jim screamed in pain...something which sometimes is referred to as the "Siamese twin" effect: there seemed to be connections between events or things that were not readily explainable by our conventional ideas of cause and effect.

What began to dawn upon these researchers and observers was that many things and events -- when considered from a sufficiently broad perspective -- were interconnected, interrelated, interdependent and interactive in ways that we had not previously even suspected.  Attempts to understand these undeniable phenomena and the nature of such interconnectedness was the beginning of systemic thinking and of understanding how systems function.

From those experiences, a new exact science has emerged:  Cybernetics. This modern discipline seeks to understand what the idea represented by the word "information" really means, how informational processes work, what is the nature of control systems and communication in man and machines, and to develop techniques and skills for effective organization: It is teaching us how to manage complexity.

Cybernetic perspectives and general system theory and thinking have, fundamentally, changed the essence of our everyday worlds, from super-computers to supermarkets.

Though we have largely ignored them to this point in time, these changes and the ideas that have since emerged do deeply affect our lives and function as lawyers, because our "legal system" is, after all, a system. And those of us who devote our time and energy to conflict/dispute resolution -- meaning, for the most part, litigation -- know full well that our time honoured system of administration of justice could benefit from a bit of effective re-organization.

A process of re-evaluation is taking place around the world and it is helping us to become aware of the need for fundamental changes in human concepts, ideas and attitudes; if we are not equal to the challenge, I doubt that we can cope with the complex issues and problems now confronting us.

Seeing our differences, problems and diversity as implicating us in conflict or disputes is something that is deeply ingrained in us, psychologically, historically and culturally.  

Yet, the fact that disparities exist between us is the most natural consequence of the variety and complexity that we experience in our daily affairs and of the fact that each of us is unique and has different and divergent views and interests in any given situation.

Large organizations -- corporations and governments, in particular -- today operate in a sea of complexity... some might say an overwhelming tide! 

Provision of services, legal requirements, public expectations, budgetary constraints, contradictory values, changing technology...all of these, and many more, create a large volume of variables in the functions and disposition of these organizations; moreover, many of these variables are constantly changing and must be continuously balanced to reflect the welfare of the whole and the needs of specific, different constituencies.

In cybernetics, this immense complexity has a technical name: "variety." Cybernetics provides a means of understanding and recognizing patterns in variety; by understanding variety, we begin to understand and manage our affairs from a much different perspective.

Please indulge me if I am devoting more time and energy to cybernetics than might appear prudent in a paper for lawyers about dispute resolution, but there is immense benefit to be derived from understanding a way of thinking that differs radically from the ways of thinking that have prevailed until recently in our world...a way of thinking that shapes not only the world in which we are now living, but our way of thinking itself.

At the risk of over simplifying, I propose to merely state some of the principles learned from cybernetics which are relevant to any reconsideration of ideas about our legal system:

• the world the world in which we live is not a mechanistic, Newtonian machine whose future can be predicted or understood from an analysis of its past
• understanding and prediction is not simply an exercise similar to the calculation of the trajectory of balls on a billiard table or calibration of a clockwork,
• our world is a complex system,
• systems exists within systems and contain systems within -- much like a set of Chinese boxes or Russian dolls,
• within each system, each part is connected and related to every other part,
• the essential characteristic of any system is determined by the nature and quality of the relationship between the parts; relationships, therefore, are the essence of what describes a system,
• systems are harmonious both internally, or intrinsically, and in relation to other systems, or extrinsically,
• the reality of this harmony is not akin to the static balance of positions and interests such as is established and maintained by that proverbial  blindfolded lady holding the scales of justice, but is like the dynamic equilibrium demonstrated by the gyroscope,
• systems are not static but dynamic,
• in relation to the micro systems they contain, and in relation to the macro systems in which they are contained, systems are under constant process and change,
• the ultimate reality of systems thinking is the constancy of process,
• the tool that we have developed for managing complexity is called the computer... it is a device that enables us to gather the immense amounts of data which we discern in variety and organize it into information,
• information is categorized, its relationship with other information understood and it then becomes knowledge: "Knowledge is Power,"
• the best known of all systems (and, apparently, the most "perfect") is our own, human bodies,
• our bodies are systems composed of various sub-systems or micro-systems -- such as the nervous, digestive, circulatory, lymphatic -- each of which is itself a system,
• just as the brain does not compete with the stomach nor the heart with the liver, systems do not compete with other systems and micro systems do not compete with macro systems,
• the fundamental nature or quality of the relationship between parts of systems and between systems is not competition and confrontation, it is synergistic:- which is to say, cooperative and collaborative,
• synergistic relationships create a dynamic in which the whole is greater than the sum of its parts: There is much more going on within the parts of a system or between systems than mere connection,
• the interaction of parts and systems creates new forms and evolves new systems,
• disharmony between parts of systems or between systems is not an aberration: disharmony is a temporary or transitory state of affairs which is part of the adjustment of relationships in the evolutionary process of creating harmony at higher levels or from larger perspectives,
• temporary disharmony or instability is a natural stage in a process, just like stomach hyperacidity is a natural part of the readjustment of the acidity of the digestive system in our bodies.

From a cybernetic perspective, what we call conflicts or disputes are merely transitory states: -- imbalances within the dynamic systemic processes which constitute the unfolding of daily, common events.


TOWARDS A BROADER UNDERSTANDING

We are accustomed to a knee-jerk or addictive pattern of interpretation which, from the increasing experience of variety in our daily affairs, leads us to conclude that we are different: so far so good.

But, because we see each other or the events in which we are involved as making us different, we deduce that our differences create competing or conflicting interests; then, we jump to the conclusion that our differences put us in conflict; then, if we have conflicts, we must have a dispute that needs be resolved...and so, we presume the need for battle and struggle to determine the survival of the fittest -- which is a tautology and a manifestly erroneous proposition which can serve as the subject for another, entirely different, discussion paper!

Habitually -- most likely reacting to our fears -- we jump from variety to dispute resolution and never stop to consider and ask ourselves whether the variety which we experience has some other meaning or possibility.

Let me be very clear on this point: I am not saying that there are not instances of conflict in our lives and the events that shape them; it is to say that conflict is, often, something that needs not so much to be resolved, but dissolved, transcended... as is possible if we look at ourselves and our interests in the matrix of the systemic structures which are also part of our reality.

From a purely philosophical and ethical perspective, I doubt if there is too much disagreement amongst us as to whether or not cooperation and collaboration are more desirable than confrontation.

But there is a feeling amongst lawyers, in particular, that a system based on collaboration is  just too hypothetical and can't work; perhaps our blindness is due to the fact that we think about collaborative systems with vision and attitudes -- lenses or paradigms -- premised  on struggle and confrontation and we cannot, therefore, see too clearly. 

I gather we all would agree that we would be much better off loving each other rather than hating each other, but we don't see how loving each other can be very practical. Certainly it would be Utopian...and that is not an adjective that people readily accept or consider too commendable these days.

I don't think, however, that our considerations and any decisions we make about the kind of changes we must make to our legal system will be made on the basis of resolution of the philosophical and ethical considerations; they will be made on the basis of technology and the development and maturity of the information/computer/communications age that is rapidly dawning upon us.

In this evolving, new world in which we now live confrontation will not work. Not only will it not work, but collaboration is indispensable. It may sound too categorical and iconoclastic, but I believe that our adversarial mind sets or paradigms are roadblocks to the merger of technology with the legal system. 

In present realities, the adversarial paradigm undermines the search for truth and justice in favour of right/wrong judgments and win/lose strategies.

We are becoming deeply aware of our existing paradigms and of the fact that they limit and paralyze us; we are finding that our methodologies seem only to exacerbate the spinning of our collective, societal wheels; we are discovering that the harder we try working in the hole in which we find ourselves, the deeper the hole gets.