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There will always be a place for the traditional courtroom battle in our legal system. The notion of winning at all costs will not disappear. But it will not be the centerpiece of dispute resolution in the near future. The zero-sum game of traditional litigation is already giving way to different notions of what it means to win. Stewart Levine developed a new way of seeing conflict itself. A former deputy attorney general for the state of New Jersey, Levine began to see that winning in the traditional sense of the word often came at a tremendous cost — pecuniary and emotional. Experience taught him that for many people, winning had as much to do with being understood as it did with prevailing in a verdict. He discovered that understanding between people could be dramatically improved by helping them form better agreements. Even when disputes arose, having the right kind of agreement in place could make resolution of conflict far quicker, less emotionally taxing and more cost-effective. When Levine wrote “The Book of Agreement,” he knew something else: that technology was also forging a path toward a less combative form of dispute resolution. The notion of “cybermediation” is an aspect of the larger ADR movement. Cybermediation is simply dispute resolution via the Internet. The physical distance between online disputants and their respective counsel perfectly complements the primary goals of ADR: to defuse, resolve and forge win-win solutions. ADR is client-driven and technology-enabled. It seems people want to resolve their disputes with less cost, more speed and less emotional turmoil. They are tired of being involved in the traditional legal system, or at least tired of their role as disempowered observers of a process beyond their control. Litigators need to be aware of this underlying trend. In response to this, groups of lawyers in nearly 20 states are formally practicing a form of ADR termed “collaborative lawyering.” In a collaborative representation, counsel for both parties to a dispute agree that neither of them will represent the client in court. Settlement is the explicit goal from the outset. Critics charge that collaborative lawyering may violate the canon requiring counsel to represent the client zealously. In other words, zealous representation means “win at all costs.” Levine, president of Washington, D.C.-based Resolution Works, a consultancy on ADR, challenges lawyers to see it differently. Winning is the goal. How we define what it means to win is the real question. While winning a verdict is sometimes important, lawyers must recognize that this kind of win is not always the primary goal of their clients. Collaborative lawyering and other forms of ADR can be offered with or without a communications technology component. However, the fact that such technology is present will lead to increased usage. The technology appeared at precisely the time when the average person wanted disputes resolved more quickly, efficiently and with less anxiety. If litigators want to play a prominent role in the future of conflict resolution, they must embrace the new mindset of the average person and the technology that enables it. They also must play a role in the very process of defining that future. Jeffrey Aresty, with Boston’s Aresty International Law Offices, saw this 20 years ago during his involvement with the American Bar Association’s section on law practice economics. Aresty began to see how the future of practicing law would forever be tied to the development of new technology. This realization began at the micro level. “I knew that computers would change the nature of the billable hour,” Aresty said. Nearly two decades later, Aresty began using the Internet to connect with lawyers around the world and create a harmonization of rules relating to online commerce and transnational practice. Virtual communities like World Law Hub (www.worldlawhub.com) sprang up as lawyers from different countries and legal systems began to hash out the ideas that will one day be law as such. The phenomenon is no different from, say, the way that bankers developed letter-of-credit rules that now underpin many international business transactions. Rulemaking started at the grassroots level to address a problem. Those in the trenches created standards. The International Chamber of Commerce turned them into policies. Nations converted them into laws. In the same way, discussions among lawyers around the globe about issues such as e-commerce, privacy and electronic filing and comity between court systems will be the international rules and laws of the future. For litigators, Aresty says the handwriting is on the wall. “They’re simply going to lose clients to various forms of Web-enabled ADR.” He points to ADR systems in use at places like eBay, the online auction site, and the World Intellectual Property Organization as evidence of current realities. People want less costly dispute resolution. Companies want this kind of mechanism built into their e-commerce business. The cost of litigation is certainly fueling the drive for more nontraditional dispute resolution. Curiously, many lawyers take a defensive stance in this regard. Limitations on the capacity of technology to effect change in the legal system result from policies that reflect an unwillingness to accommodate innovations. This leads to conflict with consumer demands for the technology-based services. Lawyers from other countries, particularly in Europe, seem to embrace the notion of a changing legal services environment more than their American counterparts. One reason is that U.S. law and policy has dominated world economic and social interaction for more than 50 years. Another reason is the expansion of U.S. law firms and, thus, U.S. client representation practices, in foreign countries. Nevertheless, information technology is enabling a worldwide discussion among lawyers about the future of the profession. Aresty cautions U.S. lawyers against harboring a de facto belief that future law and policy will be defined by American lawyers whether or not they participate in the discourse now taking place. Aresty suggests that litigators prepare for the future in three ways. First, they should participate in the grassroots debate to help formulate policy. Second, they should learn how to mediate and how to help businesses incorporate ADR concepts into their processes. Third, they should get a handle on using some of the technology tools that can allow litigators to provide services the way clients want. John Tredennick knows all about how technology helps clients get through litigation matters. As a partner at Denver’s Holland & Hart, Tredennick spent years working on complex cases for large corporate clients. Then, in a moment of “satori,” Tredennick envisioned a better way to handle all the complexity. Faced with an industrywide lawsuit in which his client was a defendant along with 340 other companies, the firm was called upon to find a cost-effective way to coordinate the case. “We had just started experimenting with extranets on a few matters and I decided to lob a grenade into the process,” Tredennick recalled. Set up correctly, an extranet would allow all the people on the defense team to access the site while keeping out others. The site itself would hold every document involved in the case and allow lawyers to have immediate access to whatever they needed. Meanwhile, the firm’s legal assistants could administer the site. The client agreed to try the concept. As a document center, the site was an immediate hit. But what Tredennick hadn’t expected was that lawyers began to use the extranet for other purposes. Lawyers posted messages about the case on a bulletin board. Groups of defense lawyers set up private areas on the site where they could view and collaborate on documents as teams. Everyone began to use the calendaring system to keep track of deadlines and tasks. Five years later, Tredennick’s idea is a business. CaseShare (www.caseshare.com) builds and administers extranets for law firms all over the country. Lawyers can use extranets for their own case management, but also to coordinate and communicate with corporate clients. A study conducted by BTI Consulting of Boston indicates that nearly half of Fortune 1000 legal departments that were surveyed want extranets in place to communicate with outside counsel. Respondents to the BTI survey indicated that the most important benefits to the use of extranets by outside counsel were information sharing, matter tracking, discovery management, patent/trademark management and contract tracking. The idea is fluid communication and central storage/access to mission-critical data. Whether practicing ADR or traditional litigation, lawyers should begin to look at extranets as a core practice tool. Clients like the idea. Technology enables it. Soon, the changing landscape of litigation practice may demand all lawyers use this form of communication/collaboration technology. Tredennick’s experience with extranets suggests that good things happen when lawyers use their creative ability to focus on how best to serve client needs. Litigators ought to think about how to offer their skills, knowledge and experience in a variety of ways to a potentially large client base that, very soon, may all be connected by a Web of information. Edward L. Rholl is director of e-learning for the Internet Bar Association in San Diego ( www.internetbar.org), where he focuses on business development training programs for attorneys and law firms.

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