Monthly Archives: July 2005

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.

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.

A brand-new interview is now available at ADR All-Stars.

This one features Ashok Panikkar, founder of Meta-Culture, India’s first conflict management consulting group. Ashok traces his cross-continental journey as a dispute resolution professional, describes the far-reaching mission of his ambitious new enterprise, discusses the state of the ADR field in India, and shares advice on communicating successfully in cross-cultural settings (and, for those of you interested in pursuing a career in ADR, even discusses job opportunities as well).

For the full text of the interview, please click here.