When was the dawning of the new era? Was it when the clients decided that "the adversary legal system takes too long and costs too much"? Was it when the clients discovered the terror and tyranny of the hourly billing rate? Was it when the clients and the public had a perception that there were too many lawyers, who were expensive, greedy, dishonest, self-serving and not caring about their clients? Was it when the clients believed that the attorneys were quarreling more than lawyering, and after a heated battle in a courtroom when the lawyers had participated in a litigation-fest, they would go and socialize? Was it when a litigated dispute took on a life of its own, with lawyers drafting special exceptions, interrogatories, motions to produce, request for admissions, motions for sanctions, motions to compel, motions for contempt, and so on until such time as the case from beginning to end took longer to fight than World War II? Was it when the public had a perception that we lawyers were grouped with used car dealers, television evangelists, politicians and the like? Or, was it when those who were grouped near us were offended?

The dawning of the new era was June 20, 1987, the day the Texas Legislature unanimously passed the 1987 Texas Alternative Dispute Resolution Procedures Act (the ADR Act). As a result, we have entered the new legal system - the new age of professionalism - yes, the dawning of a new era!

The ADR Act is enhancing our legal system in that it focuses on lawyers being problem solvers. The ADR Act provided the means for disputes to be resolved early on with less expense. Clients have been avoiding the legal system because their perception is that lawyers are not problem-solvers.

To quote the late A. Kenneth Pye, former President of Southern Methodist University, "the legal profession, through the years, has been creative in developing new concepts to meet needs not serviced adequately by the existing legal system. The evolution of equity and ultimately its triumph over the rigors of the forms of action in the reign of James I; the evolution of the concept of the trusts; recognition of a right to recover on a contract not under seal in assumpsit in the eighteenth century; creation of the corporation as a device to facilitate the concentration of capital by limiting personal liability; replacement of the formulary system by code pleading in the nineteenth century; the advent of discovery and summary judgment and the merger of law and equity in our own century are some examples. The ADR should not be viewed as a revolutionary departure, but the newest example of the flexibility of our legal system."

Steve Brutsché, one of the founding fathers of mediation, said that the litigation process resolves cases based on adjudication - that we are an English system with basic assumptions: God or gods will determine the victor through some ordeal or trial. Hot coals! Champions! El Cid! Put the issue before God! Might was right! Lawyers are the modern champions. The premise is that revealed truth (JUSTICE) will come through the adversary legal system. Rules of evidence and procedure are used to make the fight fair, and these become weapons. The gladiators are warriors at the courthouse. One of the problems is that the sword from Lady Justice is to fall on the right person - but unfortunately she is blind. The litigation process is "to decide" - "homicide" -we can be friendly, but he's trying to kill me. "Decide" means to kill the alternative. As in all warfare, all get maimed, and after awhile, no one cares. We have a glorified notion of combat. Reality is different. After the elation of the competition, you notice the bodies around you. You try to shut out this reality, but cannot. The adversary legal system promotes warfare between the parties and their counsel. The truth of the matter is, the adversary legal system can be deadly.

Approximately 2 percent of all lawsuits ever go to trial, and the other 98 percent are resolved along the way. About 100,000,000 lawsuits are filed annually in this country in all state courts, of which 70,000,000± or so are criminal cases, including traffic tickets, and the other 30,000,000± are civil cases. What the new legal system does however, is to allow the disputes to be resolved by the parties early on and with less expense.

Why is a percentage of the public abandoning the traditional legal system? Is it because they had the perception that lawyers did not practice civility nor the art of advocacy? What happened to great oratory and the power to persuade as opposed to adversarial litigation? Why did a percentage of the public find it necessary to use retired judges, alternative dispute resolution processes, and any other attempts to get away from the adversary legal system? Clearly the adversary legal system is broken, and it needs to be fixed. It is being fixed today as we speak with the new age of professionalism, the new legal system, with alternative dispute resolution being the cornerstone, and with mediation being the workhorse. The new approach is founded on the principle that the interest of the client comes first, and the interest of the lawyer and the law firm comes second.

The policy set out in the Texas ADR Act basically says that it is the policy of the State of Texas to encourage the peaceable resolution of disputes and the early settlement of pending litigation through voluntary settlement procedures. Take that policy and couple it with Rule 1 of the Texas Rules of Civil Procedure.

RULE 1. OBJECTIVE OF RULES

The proper objective of rules of civil procedure is to obtain just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law. To the end that this objective may be attained with as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable, these rules shall be given a liberal construction.

On December 1, 1993, amendments to the Federal Rules of Civil Procedure took effect. Rule 1 has been amended to require that the rules be construed and "administered" to secure the just, speedy and inexpensive determination of every action. This is to emphasize the obligation of court and counsel to help reduce the cost and delay in litigation.

The federal government now has the Civil Justice Reform Act, which introduces alternative dispute resolution procedures in all federal courts. The Administrative Dispute Resolution Act directs each federal agency to adopt a policy that addresses the use of alternative means of dispute resolution and case management (negotiation, mediation, arbitration, or related techniques).

The preamble to the Texas Disciplinary Rules of Professional Conduct is the clarion to responsibilities of the lawyer.

A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.

As a representative of clients, a lawyer performs various functions. (1) as advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. (2) as advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. (3) as negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. (4) as intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. (5) a lawyer acts as evaluator by examining a client's affairs and reporting about them to the client or to others.

Your certificate from the Supreme Court of the State of Texas states that you are entitled to be licensed as an attorney AND counselor at law.

How do we best do what we are called to do? Our generation was not generally taught in Law school how to negotiate nor how to listen. We were taught to be advocates, gladiators, trial lawyers and persuaders. Yet, the ratio of the time we spend in negotiating daily is about 9 to 1 with respect to the time we spend in court. Some lawyers of today believe it is still a weakness to pick up the telephone to call the other lawyer and to say, "Can we talk about trying to settle this case?" That is changing however. There are presently over 140 Law schools and 200 Business schools with dispute resolution courses. All states now have some form of court-related dispute resolution programs, and more than 300 community justice centers. Nearly half of the Fortune magazine's list of the top 1000 public corporations are committed to using dispute resolution to settle disputes.

The age of professionalism means to try to resolve the client's dispute as soon as possible and to close the file without fear that it will be the last file you will ever open or close.

Janet Reno, Attorney General of the United States, recently said, "The time has come and lawyers must join in, for talking in gentle and thoughtful terms, not with rhetoric, not with bashing and vicious criticism, but with thoughtful, caring ideas about how we deal with the complex troubles of America. We can come together as collegial lawyers to discuss our differences without batting each other over the head with a two by four. Too often we have focused on winning the case. Too rarely do lawyers and the public ask the basic question: What is the right thing to do?"

If it doesn't taste right, if it doesn't feel right, if it doesn't smell right, do you still do it? Is it the right thing to do? Would you want someone to do it to your client or to you? Why was "Dondi" necessary?

Attorneys are writing into agreements that if a dispute arises, it should first be mediated to avoid litigation. Procedures are being set up in companies throughout the country whereby disputes are handled internally to avoid the adversary legal system. In the U. S. News and World Report recently, an article was discussing Levi Strauss Company. The point was made that it would spend more than 40,000 hours per plant, training employees in everything from conflict resolution to managing production flows, etc.

John M. Mason, Chief Litigation Counsel for Campbell Soup Company, participated in a panel at the American Bar Association Annual Meeting. He talked about four principles that guide his company in engaging outside counsel for litigation. As I heard his remarks, it occurred to me that these four principles were no different for Campbell Soup Company than they should be for every client who hires a lawyer.

The first principle is that they look for counsel with the highest standards of fiduciary duty. They look for lawyers who act solely in the best interest of the client, consistent, of course, with the law and the canons of ethics. They look for lawyers who will put their personal and professional interests aside, including those of their firm and their partners. The corollary to that is the second principle.

They look for lawyers with courage and independent judgment. They are not looking for cheerleaders or people who will do their bidding solely to get more business to feather their own nests.

The third principle is integrity. They want their outside lawyers to enhance the reputation of the product and the company.

And the fourth principle is confidentiality. They believe that everything they do and say with outside counsel should be shielded forever.

The new legal approach - the age of professionalism - also has as one of its major tenets, the fact that you have the perfect right to disagree, but it is not necessary to be disagreeable. You can be an advocate without being adversarial. Outrageous behavior, disgusting conduct, bickering, rudeness, and other distasteful tactics simply do not have a place at all in the process of seeking a solution to a dispute. Conduct of this nature is simply unacceptable and unnecessary when an attorney accepts his/her professional responsibility in seeking resolution of a conflict.

The new legal system has built-in intelligent incentive arrangements to reward the lawyers to resolve the dispute or case early on. Rather than take three years and spend $100,000 obtaining a result that may not be satisfactory, don't you believe that a client will be more satisfied if the matter is resolved within 90 days and would be willing to pay a bonus for that? Most assuredly that client will send you more business, and you will become that client's hero. Your reputation will be enhanced, your goodwill will be enhanced, and you will have a very satisfied client. Many of us went into the practice of law because we wanted to help people solve problems. We have a responsibility first in doing so to our client, second to the legal system, and third to society as a whole.

Wouldn't it be fantastic if your client felt about you as a lawyer the way that the Dallas Cowboy fanatic fans felt about the Cowboys immediately after they won the Super Bowl? "Da boys" could do no wrong! Have your clients ever felt that way about you? Would your clients carry you on their shoulders after winning a battle at the courthouse that took three years or so and $100,000±?

If each of you had a legal problem and you had to hire yourself at your hourly billing rate to defend yourself or pursue a matter, could you afford yourself? The chances are you couldn't!

The tyranny and terror of the hourly rate which dictates that we are shackled to timekeeper's time sheets may go the way of the dinosaurs. Under the new legal system, you put the interest of the client first, and you try to resolve the case as soon as possible with the least cost and on terms satisfactory to the client.

The deadliest form of denial is delay. Section 40 of the Magna Carta of 1215 states, "TO NO ONE WILL WE DENY OR DELAY JUSTICE." This thought has been embodied in Rule No. 1 of the Texas and Federal Rules of Civil Procedure as well as on a monument built in front of the Allen Courts Building celebrating the 100th anniversary of the Dallas Bar Association.

The ADR Statute provides that a court may appoint an impartial third party to facilitate the ADR procedures. The impartial third party, being the mediator, shall at all times maintain confidentiality with respect to communications relating to the subject matter of the dispute. All matters, including the conduct and demeanor of the parties and their counsel during the settlement process are confidential and may never be disclosed to anyone including the appointing court, unless the parties agree otherwise. There is strict adherence to ethical considerations of the mediator at all times as guided by the Dallas Bar Association Standards of Practice for Mediators.

The mediator's goal, duty and responsibility is to facilitate, encourage and assist the parties in reaching a settlement of their dispute. The mediator looks not for fault, but for solution. Mediation allows the parties with advice of competent capable counselors at law to have a hand in fashioning their own resolution of their dispute. Otherwise 12 strangers in the jury box will make the ultimate decision by taking the sword of Lady Justice and deciding upon whose head it shall fall. At the courthouse there is one winner and one loser. In mediation, in the new age of professionalism, both parties WIN.

"Mediator" comes from the Latin "mediare" which means being in the middle. The mediator, the impartial third party, is like a highway median strip with the Plaintiffs going one way and the Defendants going another way. Mediation can be described as the clients having their "day OUT OF COURT." We have all heard the expression that clients want their "day IN COURT". It seems that with the new legal system, clients don't want their long delayed and costly day in court. They are trying to avoid the adversary legal system and they do prefer their unique day out of court.

The mediation process works because the clients are in control along with their capable attorneys. They get a chance to work their way through the grief cycle and to tell their story unhindered by the strict and confining Rules of Civil Procedure and Evidence. In mediation communications are confidential and are not subject to disclosure. It gives the opportunity for the clients and the lawyers to understand the strengths of their case, the weaknesses of their case, the likelihood of recovery. Steve Brutsché would say "it was simply calling a time-out for people to focus on a resolution as in a peace tent in the middle of a battle field." Over 60,000 cases in Texas have been mediated with a success rate in excess of 85% on or about the date of mediation.

There is an old Indian prayer that says: "Great Spirit, Grant that I may not criticize my neighbors until I have walked a mile in their moccasins." In mediation, the clients and the lawyers get an opportunity to listen to the other side in a friendly, relaxed atmosphere, one which is focused on finding a solution.

Stephen Covey, author of The Seven Habits of Highly Effective People, which has sold over 6 million copies since 1989, has a phrase as the fifth habit which should become the foundation of the new age of professionalism: "SEEK FIRST TO UNDERSTAND, THEN TO BE UNDERSTOOD." Many participants in the adversary legal system have never been taught to listen. When someone is talking to you, internally you are saying to this person, "hurry up and finish so I can tell you what I want to tell you." And in doing so, when you finish the conversation, you have a collection of monologues. That happens whether two clients are talking to each other, or two lawyers are talking to each other. If we were to exercise the fifth habit of Covey's book, you would first listen to the other side so that you understand them, so you know where they are coming from; you know what their frame of reference is and what is their paradigm; and when you have fully understood them, then and only then, can you have any hope of explaining your position and the facts to the other side when they in turn are listening.

Steve Brutsché also has said "One of the most powerful experiences a human being can enjoy is having his or her communication understood and received by another non-judgmental human being."

"JUSTICE FOR ALL FOR JUSTICE" was the theme of the American Bar Association Annual Meeting this year in New York City. What is justice? IT IS THE IMPARTIAL ADJUSTMENT OF CONFLICTING CLAIMS. The legal system seeks justice through a call to service. We need a recommitment to the service of our clients and a dedication toward being the problem-solvers, to meet the clients' basic human needs.

The transformation is taking place from the traditional approach in the way we practice law to the new legal system or the age of a new professionalism, irrespective of whether you call it an evolution or a revolution.

Roger Fisher, the Williston Professor of Law at Harvard Law School and co-author of Getting to Yes told me in a negotiation workshop at Cambridge "that litigation is an alternative process to resolve disputes."

In the days of King Arthur when people had a dispute, they put on their armor, mounted their horse and tried to annihilate the other person, when might was considered right and whoever won the battle certainly had to be right.

When you are a participant in litigation you are conducting a full-blown war. You get involved in skirmishes (difference of opinion), hand to hand combat (depositions, motions before the court, word processor against word processor), strategist (senior partner) against the other side's strategist (as well as their respective associates, paralegals, experts, witnesses), fire fight, battle (trial) until the matter escalates to the point where there is no more money to fund the war.

Doesn't it seem better and more civil when the clients can obtain an acceptable result that each side can live with? There would be less time involved, less cost, less stress and they can have a hand in the resolution through the mediation process. A process for resolving a dispute where they shall attain the plateau of preserving a relationship and understanding.

I am reminded of Isaiah 1:18 "Come now, and let us reason together", and Chapter 3 of Ecclesiastes, "There is an appointed time for everything. And there is a time for every event under heaven -- a time for war, and a time for peace."

Now then, this must be the appointed time for the DAWNING OF A NEW ERA, THE NEW AGE OF PROFESSIONALISM.