The Problem Solving Approach Jerry McHale, QC In May of 2006 the Continuing Legal Education Society of British Columbias

annual Dispute Resolution Conference was held on the topic of The Lawyer As a Problem Solver". The so-called problem solving approach embodies a different way of thinking about and managing conflict. The C.B.A. Systems of Civil Justice Task Force Report described the problem-solving approach in its 1996 report on reform of the civil justice system:
In a multi-option civil justice system, litigation lawyers must move away from a focus on rights-based thinking and adopt a wider problem-solving approach. This involves a fundamental change in approach and the acquisition of new information and skills to assist clients with dispute resolution ... The change in approach urged by the Task Force begins with a new focus on dispute resolution as the goal and a corresponding reduction in the antagonistic nature of the litigation process. 1

The elements of this approach are discussed below. Focus on resolution not trial The lawyer using a problem-solving approach will treat each new case as a problem to be solved, not as a dispute to be litigated or fight to be won.
People attend lawyers with problems they want resolved, not with problems they want litigated. A trial is only one way to resolve a case, yet a trial is the only option offered by the court administered legal system. Lawyers and their clients deserve better. 2

Because the goal is to resolve, not try every case, the lawyers task from the outset is to consider all possible options and identify the process that will bring the conflict to a fair resolution in a manner that is as fast and inexpensive as possible. The lawyers task is to manage the conflict toward settlement, not to manage the conflict toward trial. Moving away from strictly rights based thinking
The Task Force is also concerned that... a preoccupation with gaining advantage through an adversarial approach too often has the result of displacing substantive communication, common sense and problem-solving orientation, all of which assist in resolving disputes. 3

The problem-solving approach does not abandon rights-based thinking or traditional legal analysis, nor does it ignore the adversarial litigation option. However, it does regard rights-based litigation as only one possible conflict management model and does not commit to it, if at all, until the relative merits of all possible conflict management process alternatives have been considered and explored. Steering the conflict toward trial is only one possible approach, and because of its relative
1 2

p. 63. Chief Justice Roy McMurtry Address to the Law Society of Upper Canada, June, 1994. 3 Systems of Civil Justice Task Force Report at p.18

expense and complexity, it should be utilized only as a last resort. Fundamental change in approach
We can no longer think in terms of having every dispute resolved in the courtroom by a judge. Nor should we reasonably be putting a dispute into the court system when we know that the court process is not necessary (at least not initially) to resolve that dispute. We must think increasingly of creating a dispute resolution highway with creative options to encourage early and appropriate resolution - frameworks that offer parties a range of early opportunities to settle their disputes as collaboratively as possible. 4

A problem-solving lawyer does not regard litigation as a one-size-fits-all solution. Acquisition of new information and skills
Problem-solving respects the lawyer's role as a litigator, but emphasizes that a lawyer also serve his or her client by acting as a counsellor, a decision maker and a planner. Problem-solving demands an examination of the true needs and interests of all those involved in the dispute rather than looking only to the legal positions that are espoused by parties in legal pleadings. 5

Historically, the dominant image of legal culture has been that of the lawyer as adversary aggressively championing the rights of the client within a litigation framework. This image is changing. The concept of advocacy is now more broadly understood to include additional knowledge, skills and abilities. The problem-solving approach demands that lawyers bring new skills and new roles to disputes. Problem solver lawyers need to know what alternatives exist and how to use them. They should understand the criteria for when to employ negotiation, arbitration, collaborative law, mediation, conciliation, neutral evaluation and litigation. Reduction in the antagonistic nature of litigation The Systems of Civil Justice Task Force report quotes a lawyer to the following effect:
The current adversarial model is too well entrenched to be susceptible to total elimination and, in any case, serves too many useful purposes to be abandoned. However, there can and should be a shift away from the runaway hostility and grandstanding which too often occur... perhaps also a greater emphasis on advocacy, rather than adversarialism, would help. 6

The costs of contentiousness, in terms of money, time and emotional energy - not to mention public cynicism - are considerable. Reducing antagonism makes simple economic sense, and there is no doubt that this fact is increasingly well understood by the bar. The Honourable George W. Adams, Q. C. recently wrote "while hostility is probably an inevitable feature of disputing, the adversary system of justice provides

Green Paper: the Fundamentals of Civil Justice Reform (2005), p.11. A link to this paper is found on the Justice Review Task Force web site at http://www.bcjusticereview.org/working_groups/civil_justice/civil_justice.asp 5 th Honourable Raymond C. Fisher, United States Court of Appeals [9 Circuit] and a former Attorney General of the United States 6 P.64

maximum opportunity for contentiousness and gamesmanship." 7 It is a central objective for the problem-solving lawyer to reduce or eliminate needless polarizing and unproductive antagonism. Conclusion Herewith, a summary of the points made above by way of comparing the traditional to the problem-solving approach: Traditional Approach presenting problem framed as a rights-based, win / lose contest managed as if it will be tried conceived of as a potential trial directly translated into litigation context duty is to client primarily adversarial asserting clients position through litigation process skills focus is argument and advocacy low level of participation instructs from the sidelines indirect engagement selective disclosure of information relevant to legal issues strategic withholding win confrontation and attempt to prevail imposed solution what a judge would do fair and just outcome based on substantive law outcome more predictable and conventional Problem Solving Approach framed as an interestbased, common problem to be jointly solved managed as if it will be settled trial regarded as a very unlikely last resort process options kept open duty is to client primarily collaborative meeting clients interests through a number of possible DR forums skills focus broadens high level of participation participates in the foreground direct engagement full disclosure of information relevant to legal issues and to needs or interests of parties transparent openness win / win collaboration and consensus party-generated solution what is important to the parties fair outcome that best reconciles interests of parties (law may be an interest) outcome less predictable and more idiosyncratic

role of lawyer

role of client

information exchange process values

criteria for resolution

Mediating Justice: Legal Dispute Negotiations" CCH Canadian Ltd., p.9.