Imagine for one moment that time travel were possible. Imagine further that a colleague recently returned from the year 2020 with a full account of the changes the future holds. Setting aside the exciting possibility of knowing in advance tonight’s winning Powerball number, consider for one moment the import of the following information your colleague offers you:
The practice of law in the U.S. changed in a number of ways… Justice now is done much more by the people as most solve their own legal problems themselves.
Most disputes now never reach the formal legal system. Having ready access to the law, legal analytical tools and vast factual data, people resolve many disputes themselves. For example, a recent boundary dispute between neighbors was resolved by fixing the location of a wall by 1-inch resolution GPS transponders, downloading property title records and surveys from the country records office, analyzing the problem and possible solutions with Quicken Home Lawyer and arriving at an economic settlement to which both neighbors agreed without ever consulting lawyers.
Mediators and arbitrators resolve most other disputes. The Online Yellow Pages are filled with ads for such service providers who draw upon psychological and sociological skills as well as legal skills in helping the parties themselves arrive at their own solution…
(Emphasis added.)
Intrigued? This scenario comes from The Legal Futurist, the web site of Stuart A. Forsyth, a forward-looking consultant to the legal field.
To ensure its ongoing success and viability, every profession must look to the future. The dispute resolution field is no different. And we must be proactive in defining that future or the future will define us.
That is the premise behind the work of legal futurists like Stuart Forsyth, Charlie Robinson, and Dennis Kennedy, who are encouraging the legal profession to think in revolutionary and strategic ways about the practice of the law and the future of the field. Based on what these future-looking visionaries have to say, the evolution of the legal profession and the dispute resolution field will demand a large measure of (if you will forgive the expression) intelligent design.
To learn more about futurism and the future of the legal profession, please visit the following web sites:
American Bar Association Committee on Research About the Future of the Legal Profession
Future Law Resources, compiled by Dennis Kennedy
Association of Professional Futurists
For a glimpse into the future of ADR—from the Australian perspective—you can download here at the web site of La Trobe University’s e-library “A Vision for the Future of ADR in Australia and Our Region”, an article by Professor Tania Sourdin.
For additional food for thought, see “The Many Costs of Conflict,” an article by Stewart Levine with an interesting quote from well-known futurist Alvin Toffler about the need for farsighted approaches to conflict resolution.
Finally, for thoughts about strategic lawyering, ADR, and new directions in the legal profession, you may want to read this post of mine from a few months back.
As Gandhi once observed, “You must be the change you wish to see in the world.” And, let’s face it, there’s no time like the present.
Frequent visitors to this blog know of my continuing interest in (okay, an admitted obsession with) depictions of attorneys and the law in contemporary Western culture.
Just in time for the holiday shopping season (for those of you who may not be familiar with American consumer spending habits, the holiday shopping season here in the U.S. constitutes that period between the Friday immediately succeeding our annual late-November celebration of Thanksgiving and mall closing time on Christmas Eve) comes So Sue Me, a new board game
where you can have hours of fun suing your friends and taking their stuff. A spin of the wheel or roll of the die and some clever negotiating help you acquire businesses, file outrageous lawsuits, and bluff your way to big bucks.
(Negotiators, check it out: take a look at the advice regarding settlement and the evaluation of your BATNA as a player in the FAQ section for the game’s web site.)
For a practitioner like myself who admittedly has an interest-based, non-zero-sum, “Getting to Yes” orientation to conflict, this is all a little amusing. No surprise that this game reduces the complexities of real-life disputes in the judicial arena to a zero-sum, winner-take-all, adversarial battle to the death. It’s what boosts sales, after all, during a holiday period which purportedly celebrates the birth of a guy who once observed that “blessed are the peacemakers”.
(Mediators should know that the same company which created So $ue Me (no, that dollar sign is no typo–it’s how the title of the game appears on its packaging) has created Controversy!, a game which, based upon its description, is probably not about the constructive airing of diverse viewpoints—especially since its trademarked phrase is “Who knew being right could be so much fun?”)
Observers of human behavior are intrigued by the ways in which people respond to interpersonal challenges or moral dilemmas—those times when we are in conflict with others or with ourselves. The choices we make reveal much about who we are.
Researchers have developed instruments to help us survey our inner landscapes and to make sense of the contours and borders of the moral and social self. Let us consider two such instruments—one that illuminates conflict styles and another that measures moral intuition.
Many basic mediation trainings begin with a discussion of the Thomas-Kilmann Conflict Mode Instrument (TKI)—a self-administered test used to assess and make sense of the different styles that each of us has in handling conflict. Participants score their test responses to identify their dominant conflict style among five different modes—competing, avoiding, compromising, accommodating, and collaborating—to gain understanding of the impact those styles may have on personal and group interactions.
Although the test is available online for anyone who’d like insight into their own conflict style, it is, alas, not free (although affordable). There is, however, a conflict style test which can be completed online for no cost. Test yourself with the Adult Personal Conflict Style Inventory at the web site for the Peace and Justice Support Network of Mennonite Church USA (a great web site for those interested in learning more about faith-based peacemaking initiatives).
A very different test—one that gauges our moral intuition—is the Moral Sense Test, part of a research study sponsored by the Primate Cognitive Neuroscience Laboratory at Harvard University which seeks to achieve the following purpose:
Nothing captures human attention more than a moral dilemma. Whether we are soap opera fanatics or not, we can’t help sticking our noses in other people’s affairs, pronouncing our views on right and wrong, permissible and impermissible, justified or not. For hundreds of years, scholars have argued that our moral judgments arise from rational, conscious, voluntary, reflective deliberations about what ought to be. This perspective has generated the further belief that our moral psychology is a slowly developing capacity, founded entirely on experience and education, and subject to considerable variation across cultures. With the exception of a few trivial examples, one culture’s right is another’s wrong. We believe this hyper rational, culturally-specific view is no longer tenable. The MST has been designed to show why and offer an alternative…The MST has been designed for all humans who are curious about that puzzling little word “ought” — about the principles that make one action right and another wrong, and why we feel elated about the former and guilty about the latter.
Click here to participate in the test and to see how well calibrated your own moral compass may be.
Lord of the Rings fans may recall a post from last April about my discovery of a playful but provocative essay on mediation entitled “Gollum, Meet Sméagol: A Schizophrenic Rumination on Mediator Values Beyond Self-Determination and Neutrality”, by Professor James Coben, Director of the Dispute Resolution Institute at Hamline University School of Law.
Devotees of Harry Potter, who perhaps may have been feeling neglected by legal scholars, will rejoice to know that Aaron Schwabach, Associate Professor at Thomas Jefferson School of Law, has recently published “Harry Potter and the Unforgivable Curses: Norm-formation, Inconsistency, and the Rule of Law in the Wizarding World,” an exhaustively researched article examining the anomalies and inconsistencies in law and justice in the world inhabited by Harry Potter and his kind.
Professor Schwabach, in his own words, is neither “snobbish academic” nor “intolerant prude” “who [hasn’t] actually read any of the books, bashing Harry Potter”. He tells his readers, “If you like Harry Potter, I hope you’ll like the article. If you don’t like Harry Potter, go away and read something else.”
As I have observed before—here and, more recently, here—optical illusions are of interest to mediators, particularly because of the way in which optical illusions, like mediation, challenge us to see things differently.
Optical illusions also pointedly remind us of the unreliability of our own senses and the degree to which human perception can be manipulated or altered.
For those of you who can’t get enough of optical illusions, Matthew Homann, president and founder of LexThink, an innovative law practice consultancy, and the author of the excellent the [non]billable hour, has a link on his blog to an especially mesmerizing one.
