The Waterbury, Connecticut Republican-American reports this morning that the Connecticut State legislature has passed legislation which authorizes the use of arbitration in divorce disputes.

The new law, which goes into effect on October 1, 2005, offers to couples going through divorce another alternative to litigation. The courts, however, still retain some powers of judicial oversight: a judge must determine that parties have entered arbitration voluntarily and assess whether the agreement to arbitrate is fair and equitable under the circumstances. Furthermore, only judges will continue to have the power to decide issues relating to the children, including child support, custody or visitation.

For the full text of the statute, click here.

For more Connecticut law and ADR resources, visit the web site for the Connecticut Bar Association, including its Alternative Dispute Resolution section, which offers a useful list of local, national, and international ADR links recommended by members of the ADR section and other contributors.

Chances are pretty good that if you live in the U.S. and own a TV, you’ve probably seen the Kia commercial which depicts a husband and wife’s visit to a car dealership.

The husband is seated inside a minivan with the salesman, while his wife stands outside several yards away, watching intently but unable to hear the conversation. As the husband motions with his hands in a forceful, assertive way, he says to the car salesman, “I need to gesture aggressively with my hands so my wife thinks I’m really working you over.”

The point seems to be that Kia’s prices are so low that there’s no need to negotiate. But as a result this means that the husband must pretend to hard-bargain as a face-saving measure so his wife thinks that it was his tough negotiating style that got them the great deal.

You don’t need to be a Freudian psychologist or a radical feminist to divine the meaning of messages popular culture delivers regarding negotiation, or the ways in which it reinforces the differences—perceived or real—between men and women in negotiating behavior.

The type of negotiating we see in this ad is what pop culture typically depicts—competitive, winner-take-all, zero-sum bargaining, rather than the interest-based, value-creating, win/win negotiation promoted by ADR practitioners.

It’s hard to miss the fact that the negotiation, such as it is, takes place between two men, while predictably the woman remains on the sidelines (with the baby stroller). The message is clear: negotiation is a man’s job. And anything besides hard (racy pun intended) bargaining just isn’t manly. (Interest-based negotiation is for girly-men.)

Normally I tend to tune ads out (in fact, in my opinion, it’s why the “mute” button on the TV remote control was invented). But this ad caught my attention because of several articles I just finished reading on negotiation, which I invite you to ponder.

The first of these is “Legal Negotiation in Popular Culture: What Are We Bargaining For?”, by Carrie Menkel-Meadow, Director of the Georgetown-Hewlett Program in Conflict Resolution and Legal Problem Solving at Georgetown University Law Center.

This article, although not focusing on gender, explores the ways in which popular culture depicts legal negotiation and what these depictions reveal about our culture, including its consumers and creators. (Unsurprisingly legal negotiations are usually portrayed as high-conflict, win-lose battles between adversaries, rather than as creative, value-creating processes which result in greater gain for all participants.) It’s a well-crafted deconstruction of popular culture’s formulaic representations of negotiations in legal contexts.

Another article, “The Womanly Art of Negotiation”, written under a pseudonym, appeared last week in the Chronicle of Higher Education. It recounts the difficulties in negotiating for an academic position while a) female and b) pregnant. It offers thoughts on factors preventing women from being fully effective negotiators, including a tendency to believe that “nice girls don’t demand money”. (Something which this nice girl has never had trouble doing.)

So, are men in fact better negotiators than women? What difference does gender make to the ability to negotiate successfully?

A third article considers these questions. According to Hannah Riley, the author of “When Does Gender Matter in Negotiation? Implications for Public Leadership” (PDF), while it is difficult (and even unwise) to make generalizations about negotiating behavior on the basis of gender alone, her own studies and observations reflect the fact that at the very least women may approach negotiation differently from men.

The effects of gender, according to her theory,

depend systematically on two situational factors: structural ambiguity and gender triggers. Structural ambiguity refers to the clarity of information about the bargaining range and appropriate standards for agreement. With increased ambiguity, parties have to rely more on subjective assessments of the negotiating situation…

In studies of competitive bargaining…I found that when structural ambiguity was high, male negotiators had more optimistic expectations and negotiated higher payoffs than did females in mixed-gender pairs. When ambiguity was low, gender differences faded away.

What Riley also discovered was that when women believed that they were negotiating on behalf of someone else, they tended to ask for more than if they were bargaining for themselves. Riley observed that “The results suggest that the women did not lack confidence in their competitive bargaining ability, but rather felt inhibited about demanding value for themselves.”

Available online for downloading is “Gender as a Situational Phenomenon in Negotiation”, the complete report of the study Riley conducted together with Linda Babcock examining the impact of gender on behavior in and outcomes of negotiation.

Finally, for more information and statistics on gender and negotiation, visit the web site for Women Don’t Ask, the book Babcock authored with Sara Laschever, which discusses negotiation’s gender gap, identifies the challenges women face, and proposes some solutions.

Go placidly amid the noise and haste,

and remember what peace there may be in silence.

As far as possible without surrender

be on good terms with all persons.

Speak your truth quietly and clearly;

and listen to others,

even the dull and the ignorant;

they too have their story.

With thanks and acknowledgment to J.D. Bliss.

[Update: since publishing this article, I have since revisited this topic. For information on becoming a mediator, including training and certification, please see "How to become a mediator: five frequently asked questions about training and careers in mediation", as well as "Getting it straight: understanding mediator certification".]

The American Bar Association’s Section of Litigation features a “Question of the Month” which attorneys are invited to respond to. June’s question asked, “Does your current practice match the career expectations you had in law school?”

An overwhelming 79% answered with a resounding “No”. The published comments from respondents reflect concerns about the increasing lack of respect that lawyers endure, the amount of stress generated by the pressure to meet billable hours, and even the incivility of other attorneys.

One respondent observed, “I did not expect the practice of law to be as lucrative as it has been for me, and I did not expect it to rip out my soul,” and another went so far as to say, “I am constantly considering career alternatives. Sometimes I even cast jealous glances at the guy driving the Frito-Lay delivery truck next to me at the stop light.”

As a mediation trainer, I have become accustomed to hearing these kinds of laments from members of the bar. I often meet or get phone calls from attorneys in transition, who see mediation as a way to add new services to an existing practice, or, more typically, are hoping to abandon the practice of law altogether to pursue a different line of work—one which they hope will bring greater (chiefly psychological) rewards.

And speaking as an attorney who left the practice of law a number of years ago and never looked back, mediation can indeed be vastly rewarding and deeply satisfying work.

However, whether you’re an attorney or you come from another profession entirely, you need to complete two important steps before making the transition to ADR:

Do your homework.

And get the best possible training.

Do Your Homework.

You need to understand something about the mediation field and know how realistic your goals are before transitioning to mediation as a new career.

Despite the fact that the world seems full of a seemingly infinite number of disputes, getting parties to the table can be tough. Not all disputes can be mediated for one thing. And for another, mediation still flies below the radar in terms of public awareness. More people today have heard of mediation, which is a good thing, but if there’s a dispute, people tend to call cops or lawyers first, not mediators. There are also a lot of mediators out there, all competing for a limited number of cases—you need to think about how you can distinguish your message from everyone else’s.

“So, You Want to be a Mediator?”, an article by James Melamed, co-founder of Mediate.com, is a good place to begin your research. Jim offers plenty of recommendations, including two pieces of advice I like:

First, read everything you can get your hands on about mediation, including Peter Lovenheim’s book, Becoming a Mediator: An Insider’s Guide to Exploring Careers in Mediation, which offers a realistic perspective on careers and job opportunities in the mediation field.

Second, take a mediator to lunch. (Mediators, like everyone else, appreciate a free meal, and they will reward you for your generosity by sharing with you career advice and other pearls of wisdom.) In fact, make it a point to talk to as many mediators as possible, particularly in the practice area you’re interested in, to get as many perspectives and as much information as you can. Mediators can give you practical business advice, talk to you about the state of the field, and offer suggestions on training and education.

Get Training.

If you’re seriously thinking of transitioning to a career in the mediation field, you want to receive the best training possible. It’s an investment in your professional development, so don’t cut corners. Do your research—due diligence will pay off.

I wrote an article (one of my first posts ever) on what to look for in a basic mediation training. Just to boil down and refine somewhat my earlier thoughts, here’s my list of 5 things you should know before signing up for a mediation training:

1. KNOW THE STANDARDS. Know the qualifications standards for mediators in the state(s) you’re planning to practice in. How many hours of basic training are required? What are the requirements for the practice area you’re interested in?

2. KNOW WHAT YOU’RE GETTING. What will the mediation training qualify you to do? Find out what kinds of cases the training will prepare you to mediate and what applicable state standards it will help you meet. And definitely ask what style of mediation you’ll be taught—there are several. Bill Warters and Zena Zumeta have both written on the differences among these models.

3. KNOW WHO THE TRAINERS ARE. Get their bios. Find out what they do in the ADR field. They should be professionals with substantial training and experience, active on committees and professional associations, who have ideally held positions of leadership in the field. Accept no substitutes.

4. KNOW WHAT RESOURCES ARE AVAILABLE WHEN THE TRAINING IS OVER. A mediator’s education doesn’t end when the training is over. Find out what kind of mentoring, support, continuing education, and opportunities to mediate the training organization offers to trainees who have completed a mediation training.

5. KNOW THE HARD QUESTIONS. Be aware that one of the big controversies in the mediation field concerns credentialing and certification.

If a mediation training claims to confer “certification”, you need to find out what that means. Certification may mean something or it may mean nothing. For example, the State of New Hampshire certifies marital mediators who have completed certified marital mediation training provided by approved programs. Florida and Virginia are other states which have a system of certification for mediators. (My own state, Massachusetts, however, certifies neither mediators nor mediation training programs.)

In addition, just to really confuse things, some professional associations certify mediators. The Massachusetts Council on Family Mediation is one example. In that case what certification by a professional association means is that a practitioner has met requirements that the association has created for certain classes of its members.

To confuse things still further, some mediation training programs claim to offer “certification” trainings when they simply mean that participants receive a certificate of attendance upon successful completion of the training program, nothing more.

* * * * *

A final thought for attorneys who are seeking greater career satisfaction and a way to balance the demands of life and work. There are two resources you should look into:

Stop by the J.D. Bliss blog (motto: “Balancing Life and the Law”), a great web site which offers plenty of useful content, ranging from online resources to the real-life experiences of “Work Life Winners”.

Also, be sure to visit Renaissance Lawyer, featuring links and resources for attorneys looking for deeper meaning and purpose in the work they do.

No matter what you do, in exiting from one career to another, it’s important to plan your strategy carefully. Best of luck to all your career-changers.

Technorati tags: mediation, mediation training, mediator certification

I’ll always have a soft spot in my heart for community mediation. After all, it’s where I acquired my initial training and first experience as a mediator. Working to foster dialogue and build neighborhood relationships at a grassroots level, community mediation programs provide low-cost or pro bono mediation services and offer assistance to under-served and at-risk populations.

That’s why it was gratifying to see two stories in local news this week touting the benefits of community mediation.

The (Springfield, Mass.) Republican reported that the City of Holyoke, Massachusetts, has just announced plans to establish a brand-new community mediation program to resolve neighborhood and family disputes with the help of volunteer mediators. This program has the full support of Holyoke Police Chief Anthony R. Scott and Mayor Michael J. Sullivan, and was inspired by the work of the Holyoke Peace Initiative Committee, which earned Holyoke the All-America City Award in 2002. The program will be funded by the City, and Holyoke is currently seeking additional funding from the National Association for Community Mediation.

Community mediation also received a nice plug by the Boston Globe yesterday in an article on battles between neighbors over boundary issues. Among the experts interviewed for the article was Gail Packer, Executive Director of the Community Dispute Settlement Center (”CDSC”) in Cambridge, Massachusetts, one of the best (if not the best) and most highly respected community mediation programs in the Commonwealth. (CDSC was a finalist for this year’s Cambridge Chamber of Commerce’s Nonprofit of the Year award.)

Distance learning, particularly through the medium of the Internet, has become an increasingly common feature of the academic landscape.

A new arrival to the distance learning scene is Transcend Peace University, which describes itself as the “world’s first on-line peace university”. Its courses are “designed for government and NGO practitioners, policy makers and students at any level working in the fields of peace, conflict transformation, development and global issues.”

Courses include “Conflict Prevention, Intervention, Reconciliation and Reconstruction,” “Democratization and Development,”, and even “Peace Museums” (a topic I blogged about a couple of months ago).

Applications are being accepted now for the fall semester beginning in October 2005. The application deadline is September 15, 2005. (Please be aware that Transcend is not an accredited, degree-granting institution at this time.)

Games and game theory crop up frequently as topics in conflict resolution literature. Games, after all, are a great tool for teaching conflict resolution theories and skills, and game theory, which utilizes mathematical formulas to predict and understand complex human behaviors, can help shed light on conflict and collaboration.

I have several links to share with you for game and game theory enthusiasts. First games, then game theory.

Bill Warters, the author of Campus-ADR Tech Blog, has an enviable knack for discovering great web sites. Case in point: Bill recently blogged about the Distributive Justice Interactive Web Site, a fascinating project which examines notions of justice and fairness with respect to the distribution of goods and resources. It includes a game in which players can create their own distribution model. (Click on “enter” at the main page and place your cursor over the image of the gear.) You can also complete a survey, read about theories of distributive justice, or subscribe to the project’s newsletter.

There are some interesting insights into gaming in an essay by Katrina vanden Heuvel, editor of The Nation, which challenges the commonly held belief that video games are vehicles for promoting violence, and describes ways in which games instead are used to teach empathy or build understanding of other cultures.

This essay includes a link to Water Cooler Games, a forum for video games designed for purposes other than entertainment, which in turn leads you down the rabbit’s hole of gaming sites and other articles. This led me to The Better Business Game, in which players wrestle with social and environmental issues in the context of running a business; and the United Nation’s World Food Programme’s Food Force, in which players participate in 6 missions to address hunger in troubled regions.

Let’s turn now to game theory. Although game theory has been used to analyze human behavior in activities that include conflict and cooperation, it has also been utilized to weigh issues of grave consequence in today’s world: terrorism and counterterrorism. Several articles are available online that examine the use of game theory in examining these issues. Among these are:

A recently published article by Ronald D. Fricker, Jr., of the Naval Postgraduate School, asks the question “Game Theory in an Age of Terrorism: How Can Statisticians Contribute?” (Click here for either HTML or PDF format.)

There is also an article by Todd Sandler, “Counterterrorism: A Game-Theoretic Analysis,” which appeared in the April 2005 issue of Journal of Conflict Resolution, which can be downloaded in PDF format by clicking here.

If you haven’t done so already, stop by and visit Blawg Review #15, hosted at George Lenard’s Employment Blawg. This is one of the best and most creative Blawg Reviews yet. George riffs on song titles from the sixties and seventies, throws in some brilliant graphics, and dishes up an eclectic mix of law-related (and not-so-law-related) links.

(And many thanks to George for saying nice things about this blog in a section of Blawg Review #15 entitled “We Can Work It Out.” Good luck with that summary judgment reply, George.)

As the saying goes, “assume” makes an “ass” out of “u” and “me”. And we make assumptions all the time—it’s how we’re hard-wired as human beings. (And it’s that very human tendency which keeps mediators busy.)

Unfortunately, of course, our assumptions can sometimes be wrong. They may be based on incomplete or inaccurate data. And we often fail to ask questions, believing that we have all the information we need to draw conclusions.

We also tend to trust our senses to gain information about our world, relying upon our sight and our hearing to gather data—data which in turn forms the basis for the inferences we draw about our interactions with each other.

But our perception can fool us.

Gerry Riskin reminds us of this compellingly in his blog, Amazing Firms, Amazing Practices (which is pretty amazing itself). He offers a link to a real mind-bender of an optical illusion courtesy of MIT which makes you realize just how wrong your perception can be no matter how right you think you are.

(Gerry credits Rocketboom with the story—a video blog featuring a new three-minute news or entertainment video daily.)

For more optical illusions, click here for 55 Optical Illusions and Visual Phenomena by Michael Bach, or visit Wikipedia.

The Internet, as I have discussed before, provides vast opportunities for connection and communication, facilitating dialogue and the dissemination of information. Simultaneously conference center, marketplace, library, and town square, it is at once local, national, and global, transcending the limits of physical geography.

This of course has legal, business and social ramifications. What laws govern in cyberspace? What rules define conduct and interactions in a space without borders? What role can attorneys, business owners, and others play here to develop processes and protocols that instill confidence in online transactions and communications?

Jeffrey Aresty, of Aresty International Law Offices, P.C., an e-commerce and Internet business law practice based in Boston, has been pondering these kind of questions.

To explore these and other questions relevant to the practice of law and online commerce, he recently founded InternetBar.org, a virtual legal community and bar association for attorneys around the world. InternetBar.org’s mission is to promote the practice of law online, further the development of sound ethical practices in cyberspace, and “work towards the harmonization of the rule of law on the internet”—all through the collaborative efforts of members.

Membership and registration are free and provide visitors to the site with access to the full texts of articles and the ability to participate in web-based discussions. For more information and to read InternetBar.org’s statement of purpose, click here.

Dina Beach Lynch, a leader in the ADR field and a successful entrepreneur who has launched several businesses, including most recently WorkWellTogether.com, a web site offering workplace conflict coaching services for professionals, has a proposition for you.

If you’re a mediator about to start your own business, she’d like to hear from you. Dina is offering to mentor two mediators through the start-up phase of building a business—using her blog, Mediation Mensch, as a forum for sharing this experience with her readers. (This is free, mind you.) All you need to do is drop her an e-mail telling her who you are, what your goals are, and why coaching you will bring benefits to all her readers. Visit Dina’s blog for further details.

I depend upon the kindness of strangers for copies of the American Bar Association’s ABA Journal. (I blame this on the Internet—the world’s greatest library—which has almost succeeded in making magazine subscriptions obsolete—and the reason why I tend to subscribe to few printed periodicals. After all, if you’re patient, sooner or later everything finds its way to the web.)

So it was only today that I saw last month’s issue of the ABA Journal, which my business partner was good enough to leave on my desk this morning. An article by Molly McDonough entitled “Meddling in Settling” caught my eye, since it discussed an issue I had blogged about a couple of weeks ago: the growing (and disturbing) trend among judges to use strong-arm tactics to coerce litigants to settle, including the imposition of sanctions on parties who fail or refuse to settle their cases through mediation. This practice has understandably caused mediators and other ADR professionals much consternation, since it undermines confidence in mediation and makes settlement negotiations far less attractive to litigants. Coercion and mediation simply do not mix.

Recognizing that this is a problem in urgent need of a remedy, the ABA has taken steps to evaluate these and other issues and to propose recommendations for addressing them. Available for downloading in PDF format at the ABA’s web site are two documents on this topic which are well worth perusing.

First, there is the report of the ABA Joint Commission to Evaluate the Model Code of Judicial Conduct, which was released just 11 days ago. The report recommends substantive changes to the ABA Model Code of Judicial Conduct, and includes a preliminary draft of the Code.

The proposed revisions to the Model Code do address the issue of coercive settlement practices by judges. For example, the comments to Rule 2.09, Ensuring the Right to Be Heard, urge a judge to

be careful that efforts to further settlement not undermine a party’s right to be heard according to law. A judge may therefore encourage parties to a proceeding and their lawyers to settle matters in a dispute but should not act in a manner that coerces a party into settlement.

(Emphasis added.)

The comment period for the preliminary draft remains open until September 15, 2005. Comments may be submitted to Debra D. Taylor at the American Bar Association at debrataylor [at] staff.abanet.org.

Secondly, there is a well-researched paper authored by the Honorable John C. Cratsley, a justice of the Massachusetts Superior Court and a lecturer at Harvard Law School, on “Judicial Ethics and Judicial Settlement Practices: Time for Two Strangers to Meet”. In this paper Judge Cratsley explores the ethical dimensions of judicial involvement in settlement, discusses the role of ADR in the courts, and explores the reasons why it’s time for the Model Code of Judicial Conduct to be revised. Judge Cratsley also supports mandatory training for judges undertaking mediation—the same kind of training that statutes or court rules require of neutrals engaged in court-connected dispute resolution.

This is a radical proposal but one which many in the ADR field would undoubtedly embrace. (Unfortunately, however, the preliminary draft of the Model Code posted at the ABA web site does not contain Judge Cratsley’s proposed provisions for mandatory ADR training for judges.)

1000 women from 153 countries have been jointly nominated for this year’s Nobel Prize in peace through the efforts of 1000 Women for the 2005 Nobel Peace Prize, an organization determined to gain recognition for the millions of women engaged in efforts to promote peace around the world.

The nominees come from all walks of life: they are teachers, attorneys, farmers, nurses, politicians, and activists. They conduct their work at many different levels—locally, nationally, and across borders. Many of them do their work at the risk of their own personal safety or even their lives (in fact, for that reason, the 10 women from Uzbekistan who were nominated could not be identified by name).

Since the Nobel Peace Prize was first awarded in 1901, only 12 women have been its recipients. The goal of 1000 Women is to ensure that the work of women throughout the world, much of which has largely gone unnoticed and unacknowledged, will receive at last the recognition it deserves. In fact, in identifying nominees, 1000 Women sought

especially unknown grassroots women who do not exercise any coordination function, but do direct and active peace work within their own immediate regions. This did not exclude women known nationally and internationally. However, we want to particularly honor women who perform largely unnoticed background work and who therefore receive little recognition.

999 women were nominated; the 1000th nomination is symbolic, intended to represent all women engaged in peace work and conflict resolution. The names of the women nominated for this honor can be found here in PDF format.

You can also search the 1000 nominees by country and/or by keyword. (ADR practitioners, please note that one of the keywords is “Mediation”–try choosing that keyword without selecting a country for a global list of women engaged in mediation and conflict resolution.)

The Sofia News Agency reported yesterday that Bulgarian minister of justice Anton Stankov has just approved standards for mediators and the practice of mediation in Bulgaria. In addition, a public register of approved mediators has been created. Although the mediator practice standards are not available online at this time, click here for a link to the Rules Pertaining to the Unified Mediators Register.

For readers interested in learning more about mediation in Bulgaria, there is available at the web site for the Academy of European Law a paper presented at a March 2005 conference on family law and divorce mediation which describes the status of mediation there and examines the challenges that the promotion of mediation within Bulgaria has faced. Possibilities and Limits of Family Mediation: The Case of Bulgaria was written by Velina Todorova, Ph.D., a professor at the University of Plovdiv.

A couple of days ago I blogged about The Law Firm, the latest reality television program, and one which promises to be bad news for lawyers. As I noted earlier, this is hardly what the profession needs at a time when popular confidence in attorneys here in the U.S. has never been shakier. (Check out how the public ranked professions in terms of honesty in a recent Gallup poll—attorneys were near the bottom, surprisingly ranked even below politicians.)

Polls and television shows alike reinforce stereotypes about attorneys. Shows like The Law Firm overlook entirely the complexities of the ever-evolving legal field, entrenching negativity in a time of positive change for the profession. Inaccurate depictions of the practice of law serve no one, least of all the public.

What is missing from portrayals like those that viewers of The Law Firm will experience is the tremendous range of what today constitutes the practice of law and the degree to which that practice has evolved. Which is too bad, because it means that these significant changes will go largely unnoticed by the public–and, apparently, the media as well.

This evolution of the practice of law is the result of many factors–rapidly emerging fields and industries, technological developments, just to name a few. But there are other influences as well that may be discerned in considering the new directions in which the law has moved. Among these influences is plainly alternative dispute resolution (by which I mean all of its many forms—including mediation, negotiation, and conflict management and intervention).

What follows are but a few examples of signs of this influence in shaping the practice of law in the 21st century.

Collaborative Law.

Collaborative law is a rapidly growing specialty which changes radically the way in which attorneys and their clients on all sides of a dispute interact with each other in achieving resolution. Based upon principles of cooperation, mutual respect, and openness, collaborative law relies upon negotiation, effective communication, and joint problem-solving, rather than litigation, to resolve disputes. Attorneys and their clients agree to work together to share information and the work product of allied professionals. Collaborative law has been used most frequently in family, divorce, and small business disputes, but collaborative practitioners believe it has applications in employment contexts or other cases in which preserving or maintaining relationships matter.

Strategic Lawyering

If the fact that it made the cover of this month’s issue of the American Bar Association’s ABA Journal is any indication, strategic lawyering is clearly a major trend for the legal field. This article, “The Strategic Lawyer” (which is not available online for free—meaning that unfortunately I can’t link to it for my readers), details an emerging trend in business law practice, in which business and legal strategy operate together. In strategic lawyering the attorney’s role is not merely that of technician, limited to the interpretation of law or litigation expertise, but rather to assist clients to develop strategies to further an organization’s overall business goals.

The strategic lawyer helps the client look at the big picture and consider the problem holistically, determining what the client needs and what kind of resolution would best meet those needs in a way that creates value for the client. (It is not difficult to see how aligned this is with the work that a mediator does—working with parties to define interests and generate workable solutions that meet interests and maximize gain.) Strategic lawyering also includes assisting a client determine how a problem occurred and design future-oriented systems that will prevent such problems from occurring again. Rather than focusing on argument and deal-breaking, the attention is placed on effective negotiation, communication, and creativity.

The Revolution in Legal Education

The ABA Journal article mentions briefly the revolutionary approach to legal education at Northwestern University Law School, where the notion of strategic lawyering is embraced. The first-year curriculum at Northwestern now includes a course on “Communication and Legal Reasoning”, which, in addition to teaching students about legal research and writing, introduces exercises aimed at fostering team-building and collaboration. Northwestern also offers “Lawyer as Problem Solver”, a supplemental program for first-year law students aimed at helping students learn to “‘think like a lawyer’ in the 21st Century” and to master skills “[t]o serve clients effectively” that include “integrative negotiation, dispute resolution, creativity, coalition-building, decision-making, teamwork and leadership.”

Northwestern is by no means the only law school in the U.S. with this unique approach to preparing law students for 21st century law practice.

Most notable among them is the University of Missouri-Columbia School of Law, which in 1984 established a Center for the Study of Dispute Resolution under the supervision of director Leonard Riskin.

The Center, which has played a leading national role in developing law school curricula in dispute resolution, was the moving force behind the creation of a required course for first-year law students on “Lawyering: Problem-Solving and Dispute Resolution”.

“First thing we do, let’s kill all the lawyers”, as one of Shakespeare’s characters in Henry VI memorably remarked.

Rarely has a profession suffered so much scorn (and threats of violence) through the printed and spoken word as the law. (Unless, of course, you count Diderot’s sanguinary reflection on monarchs and clergy: “Man will never be free until the last king is strangled with the entrails of the last priest.”)

And here in the U.S. public perception of attorneys has never been more negative.

You would therefore think that the last thing the profession needs is a reality TV show depicting lawyers at their worst. Yet that’s precisely what NBC is offering in its newest series, The Law Firm, which debuts on July 28. Twelve attorneys will compete for a $250,000 prize as they try actual cases before judges and juries, which will result in legally binding outcomes for the litigants. According to the web site, “the cases range from First Amendment issues to neighbor disputes to wrongful death.”

Predictably, the contestants will stop at nothing to win and will seize every opportunity to bully and humiliate each other. If the video clip available at the site is any indication, viewers will have plenty of opportunity to see lawyers behaving badly. As a voiceover in the clip explains, “What The Apprentice did for the business world, The Law Firm will do for the legal world”—as if that’s somehow cause for celebration.

Lest you still may be nurturing hopes that this program will cast attorneys and the legal profession in a flattering light, consider the following samples of dialogue uttered by Law Firm contestants (which you can hear for yourself on the video):

“Your case is a loser and so are you.”
“All’s fair in love and war, right? Well, this is war.”
“We’re dealing with a bunch of egotistical men.”

This seems very far removed from the principles described in the preamble to the ABA’s Model Rules of Professional Conduct, which exhort the attorney to “demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials”, and “[a]s a public citizen,” to “further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”

So much for furthering public confidence in the rule of law.

None of this can be good news for lawyers. How sad for all of us that these few were willing to demean and cheapen the profession in exchange for short-lived notoriety and (presumably) some cash.

Tomorrow is the 4th of July, a day when the U.S. commemorates its independence from Britain. The drafter of the Declaration of Independence, Thomas Jefferson, was himself an attorney. Regardless of those who seek to tarnish it, the law remains an ancient and honorable calling—if only we conduct ourselves as if we truly believe it.