Two weeks ago I published a post explaining why I would not be observing One Day Blog Silence today, April 30, when many bloggers will be observing a collective day of silence in honor of the victims of the Virginia Tech shootings along with others who have fallen to violence throughout the world.

I have chosen not to participate. Today instead I am calling attention to another important observance. Tomorrow is Law Day. Law Day, a public education initiative of the American Bar Association, was created to celebrate democracy and the rule of law. I can think of no better way to honor those who have perished through violence than to celebrate the fundamental liberties that the rule of law protects. Before we can have peace in the world, we need justice first.

How will you celebrate Law Day? For some ideas, visit the Law Day web site.

American lawyers by now may be inured to media attacks on the legal profession. We expect it from Fox News. But this week lawyers drew fire from an unexpected source: a National Public Radio broadcast.

On Point, a week-day radio news magazine produced by NPR member station WBUR in Boston, broadcast a show this week titled “Verdict on American Lawyers“. From the show’s description:

America’s legal profession is based on ideals: on standards of education and admission to the practice, ethics regulation, a disregard for commercialism and on working on behalf of the public good. The legal system is rooted in the belief that all should have access to justice. But Yale Law Professor and legal historian, [sic] says it’s not so. The profession is hardly professional anymore. He says lawyers today are out for their own economic self-interest…

Instead of providing what could have been a rich discussion about the present and future of the legal profession, with points and counterpoints from a spectrum of voices, On Point succeeded in reinforcing for its listeners virtually every negative stereotype that exists about American lawyers today. It perpetuated the myth that all lawyers work for large firms on behalf of shady corporate interests and are members of an Ivy-educated elite motivated solely by self-interest and greed.

The show’s greatest defect was its failure to accurately and fully depict today’s legal profession in all its diversity. This one-sided portrayal of a legal profession in moral decline ignored the numerous efforts that have contributed to the improvement of law and the institutions that serve it. And it disregarded the movements within the profession that seek to deliver justice better and provide effective mechanisms for the resolution of disputes.

There are plenty of attorneys today who are trailblazers, breaking new ground through movements like collaborative law and restorative justice. These attorneys are bold architects of new ways of serving the public and justice better.

And how can a show that purported to examine the legal profession and access to justice fail to discuss one of the most important revolutions in the courts and in the practice of law: the widespread availability and institutionalization of alternative dispute resolution?

As an attorney who no longer practices traditional law but has spent the past decade as a mediator helping people resolve disputes both within and outside of the legal system, I have many colleagues in the bar who are committed to these kind of innovations in the practice of law and the resolution of disputes. Many are outspoken advocates of these new ways of thinking and work to transform and reinvigorate the practice of law.

Many of them strive to illuminate for the legal profession as well as the public the art and creativity within the practice of law and to help attorneys reclaim the dignity and meaning in what is still an honorable profession.

You may hear “Verdict on American Lawyers” in a number of formats at the On Point web site and judge for yourself.

It behooves all of us who serve in a profession to pay attention to the way our work is perceived or our profession characterized. In particular we should heed the criticisms, whether just or not, that are raised about our work, so we can learn from or counter them.

Mediators may then wish to know how we are viewed by one scholar in a movement afoot here in the U.S. This movement would expand the right to counsel in criminal cases to civil litigation. It comes in response to a challenge that many in the legal community recognize but do not always agree how best to address: the rising number of pro se litigants in civil and family court cases.

This civil right to counsel is known as “Civil Gideon”, after the landmark U.S. Supreme Court decision, Gideon v. Wainwright, which affirmed the right of an indigent person to have the assistance of counsel in a criminal trial. (Retired mediator and attorney David Giacalone introduced me and other readers of the blog shlep to this movement.)

Acceptance for the notion of a civil right to counsel will come about only through cultural change in the halls of justice and among the players there, according to one of its proponents, Russell Engler, a Professor at New England School of Law. In his 2006 article, “Shaping a Context-Based Civil Gideon from the Dynamics of Social Change” (downloadable in PDF from SSRN), Professor Engler describes the actions of those standing in the way of progress thus:

In the courtroom, court personnel, including the judges, will likely encourage the unrepresented litigant to settle the case. That, in turn, may require the litigant to go to the hallway to negotiate with the lawyer, or to resort to some form of court-based mediation. The hallway negotiations are rife with instances of overreaching and unethical behavior by lawyers, unmonitored and unpunished by a legal system that depends on a high settlement rate. Where the litigants resist settlement, strong words from the judges, mediators or lawyers eventually induce litigants to settle. Few civil cases are tried, and most settlements involving the unrepresented poor occur with a minimum of judicial involvement. [Id. at 2.]

Even acknowledging variations in behavior and changes over time, it is difficult to overstate the extent to which judges, court-connected mediators, clerks, court administrators, and the bar’s rank and file are hindering the expansion of a right to counsel in transacting their daily business. While many in those ranks are focused on the “problem” of unrepresented litigants, it would be a mistake to assume that those players are natural allies in Civil Gideon initiatives. [Id. at 3.]

(Emphasis mine.)

My first reaction was to feel outraged by this portrayal of our profession as intentional actors in an assault on justice. In my view such sweeping generalizations smear those whose support is most needed and ignore the efforts that many in our profession make to advance justice. (And never mind the insult to the many judges, clerk magistrates, and lawyers I have seen over the years who bend over backward to accommodate pro se litigants and treat them with fairness and respect.)

This is particularly true when so many mediators, particularly those in the nonprofit community mediation programs serving courts where the indigent pro se seem so overrepresented, know all too well the dangers such litigants face. Many mediators care passionately about justice and take such concerns seriously. Here in Massachusetts, our Supreme Judicial Court promulgated rules that prohibit exactly the sort of conduct on the part of mediators that Engler criticizes–rules which mediators helped create incidentally. The Uniform Rules of Dispute Resolution, Rule 9(c)(iii), provides:

Where a party is unrepresented by counsel and where the neutral believes that independent legal counsel and/or independent expert information or advice is needed to reach an informed agreement or to protect the rights of one or more of the parties, the neutral shall so inform the party or parties.

Other sections of Rule 9(c) emphasize the voluntary nature of mediation and prohibit coercion by the mediator:

(v) The neutral shall inform the parties of their right to withdraw from the process at any time and for any reason, except as is provided by law or court rule.

(vi) In mediation, case evaluation, and other processes whose outcome depends upon the agreement of the parties, the neutral shall not coerce the parties in any manner to reach agreement.

Similar safeguards exist in other states as well.

As I said, though, that was my first reaction. My second reaction was different.

I thought to myself, Engler has a point.

You and I both know that not every mediator heeds these ethical rules. I have known of mediators (yes, community mediators among them) who routinely browbeat pro se parties into settling. I have met mediators who care more about settlement rates than trivialities like informed consent or the satisfaction of the parties in the outcome. And in a recent conversation with another mediator about informed consent, I was surprised to hear that mediator express horror at the thought of encouraging a party confused by a legal issue to seek advice from a lawyer. (Encouraging them to go to an accountant for advice on a tax issue would be okay, however.) “It’s against the spirit of mediation to involve lawyers!” they argued. This view incidentally is not an uncommon one.

I am not arguing here in favor of Civil Gideon. I don’t know yet whether I support it or not. I am concerned that it focuses only on the indigent, when so many of the middle class cannot afford legal services either. I also don’t think that being represented by counsel is any guarantee that you’ll negotiate more effectively at the mediation table or even fare better in court–I have seen my share of unrepresented people outbargain a supposedly more sophisticated opponent with counsel, as well as people whose best interests were ignored by their lawyers. And the problem may also not be that pro se litigants are pressured to accept settlements they should not. On the contrary, I have seen pro se litigants walk away from fair settlements to defeat in court later, simply because they lacked legal advice to recognize that settlement as a fair one. And I personally would rather see this energy channeled against tort reform, before the case for a civil right to counsel becomes moot. But these are concerns well beyond the scope of this post.

I share Engler’s viewpoint with you, my colleagues, to invite us all to reflect on our role at the table. He raises questions we should stop and face.

Is our goal to settle cases? Or is it to advance justice? Perhaps we can achieve both.

But let us be careful–very careful–not to mistake the first for the second.

I begin my series on “Bridging the divide between lawyers and mediators” in contemplation of the rule of law–what has been described as “the bulwark of our democracy”. Law after all stands at the center of our political and civic lives. It is the backbone of our political systems, provides certainty to our commercial transactions, reduces arbitrariness, offers recourse to the wronged, and ensures equality and individual liberties.

For any of us to appreciate the work that lawyers do, we need to begin by appreciating the law itself.

* * * * *

Earlier this week the U.S. observed Martin Luther King Day, when virtually the whole nation pays homage to key elements of the rule of law–the importance of justice and the value of civil liberties in a democratic society–or at least pays lip service to those things. The problem though with holidays like this is that for one day the words “liberty” and “justice” are on everyone’s lips. But, like the words “peace” and “good will” at Christmas, on the following day they seem conveniently forgotten.

Here in post-9/11 America, the rule of law has really taken it on the chin.

Political leaders have threatened or taken steps to strip courts of jurisdiction to hear certain kinds of cases. Most notoriously, last year federal courts lost the authority to hear challenges by foreign nationals to challenge their detentions as terror suspects.

As anger at “activist judges” spreads, death threats against judges for controversial decisions are on the rise. Attacks on judicial independence are increasingly common–consider for example South Dakota’s Amendment E which would have stripped judges of their immunity to allow lawsuits against them by dissatisfied litigants. Meanwhile, just about everyone these days hates lawyers.

That’s the state of the rule of law in the 21st century.

For just a moment, let’s wind back the clock to a time almost half a century earlier when the rule of law actually earned its own special day of recognition: Law Day, May 1, a day proclaimed by President Dwight Eisenhower in 1958 to recognize and honor the rule of law.

I invite you to read the text of the 1958 radio broadcast by then American Bar Association president Charles Rhyne announcing the enactment of Law Day. At the time Rhyne spoke these words, Communism was the political threat du jour. Therefore as you read the text of the broadcast replace the words “Communism” and “Communist” with their 21st century analogues. And as you do so, try very hard if you can to imagine the current White House administration, members of Congress, and state and local politicians throughout the U.S. affirming Rhyne’s words. Be sure to watch out for the following language:

In America law reigns supreme. No man in our Country is above law, not even the President of the United States…The rule of law has been the bulwark of our democracy. It has afforded protection to the weak, the oppressed, the minorities, the unpopular; it has made it possible to achieve responsiveness of the government to the will of people. It stands as the very antithesis of Communism and dictatorship…

The lawyer is the technician in man’s relationship to man. There exists a worldwide challenge to our profession to develop law to replace weapons before the dreadful holocaust of nuclear war overtake our people…

In our country ignorance of the value of law in international relations and what it could do for the people of the world is appalling. A major purpose of “Law Day-U.S.A.” is therefore to demonstrate to our people that the need for law in the world community is the greatest gap in the growing structure of civilization…

Say it loud: I’m a lawyer and I’m proud.

Coming up next in this series: “What mediators can do for lawyers”.

As an attorney and as a mediator I straddle two worlds. People have often asked me if reconciling these two professional selves is difficult, expecting that the gravitational pull that each exerts must draw me in opposite directions. It does not.

Although one field goes so far as to frame itself as an alternative to the other, there is in fact much overlap and common ground between these two seemingly different fields.

There is much that each can learn from the other. Knowledge of one provides a deeper appreciation for the traditions and qualities of the other.

The problem though is that all too often attorneys and mediators view each other as rivals, not partners, in dispute resolution. There’s plenty of mutual distrust and even open hostility to go around. What’s interesting is that because I’ve got credentials in both worlds, each side trusts me enough to tell me what they think about the other.

Among the concerns that attorneys have about mediators are:

• Mediators will take clients and business away from lawyers.
• Mediators who aren’t lawyers aren’t competent to mediate disputes involving legal issues.
• Mediators who are lawyers want to play judge and make lawyers look bad in front of their clients.
• Mediators are a waste of time and money–all they want to do is get everyone to get in touch with their feelings, hold hands, and sing kumbaya.
• Mediation is the handmaiden of tort reform.

Among the concerns that mediators have about attorneys are:

• Lawyers want to put mediators–especially mediators who aren’t lawyers–out of business.
• All lawyers care about is billable hours instead of helping clients achieve the best outcome possible in the client’s interest, not the lawyer’s.
• Because lawyers are adversarial, lawyers will make any bad dispute worse, destroying relationships and dissipating client assets.
• Lawyers lack vision: the only outcomes they can see are binary–win/lose, black/white, good/bad.
• Litigation is an (un)necessary evil.

Beginning next week I will begin a series of articles examining these concerns. My goal is threefold: to help each field better understand and appreciate the other, challenge and debunk some urban legends, and to rehabilitate lawyers and mediators in each other’s eyes.

I propose, in effect, to mediate between mediation and the law.

* * * * *
Update: As the series unfolds, the links to each article will be posted below.

Part 1: Valuing the rule of law
Part 2: What mediators can do for lawyers
Part 3: What lawyers can do for mediators

The “vanishing trial” phenomenon is a crisis in the law, according to a recent article in the Boston Globe. Young trial attorneys aren’t getting the chance to build trial skills since purportedly few cases now go to trial.

Here’s the reason, according to the Globe:

Because of the high cost of going to trial, fear of unpredictable jury verdicts, and other factors, many cases instead are being resolved through settlements, mediation, and arbitration, which litigants often prefer to the emotional ordeal of going to court.

Help me out here. What exactly is the problem?

I took pen (or actually keyboard) in hand to write a letter in response, which the Globe published:

It’s too bad that you framed the phenomenon of the so-called vanishing trial as a problem and not a positive (”Few chances for lawyers to develop trial skills,” Page A1, Nov. 29).

There’s evidence to demonstrate that the decrease in trials is due to better case management practices by the courts, combined with the fact that so many courts now offer an array of dispute resolution mechanisms, such as mediation, which encourage the early and mutually satisfactory settlement of disputes. If fewer cases go to trial for these reasons, then our overburdened courts and litigants all benefit.

The article also unwittingly perpetuates the myth that television delivers to us daily that all attorneys do is litigate. While trial skills continue to be taught in law schools and are part of any attorney’s tool kit, these are not the only skills that our profession calls upon or that attorneys develop or law schools teach. The most important roles attorneys serve are as advisers, negotiators, problem solvers, and even healers of conflict. If fewer cases are going to trial, then it may simply mean that attorneys are doing their job in fulfilling these other roles.

The vanishing trial–a conjuror’s trick or a crisis in the law? What do you think?

Those of you who track representations of lawyers in popular culture will want to check out “A Coloring Book for Lawyers” (in PDF), which my son, a Legal Studies and Philosophy major at the University of Massachusetts, Amherst, just sent me a link to (hey, thanks, Adamo). (A gold star for everyone who can color inside the lines.)

For additional posts that describe or deconstruct pop culture depictions of attorneys, please visit the following articles from this blog:

• The eyes have it: gauging public opinion of attorneys
• Bad reception: new television program distorts image of attorneys
• Hold the anchovies: law firm spoof seeks clients wronged by mediocre pizza
• All bets are off: should mediators and negotiators learn lessons from poker players?

Technorati tags: Culture and Society, Lawyers, popular culture

Those of you who are on the alert for depictions of attorneys in popular culture should take a look at this pizza ad campaign for Donatos Pizza, which hilariously lampoons ambulance-chaser web sites.

(Via the Duct Tape Marketing Blog.)

Technorati tags: Culture and Society, Lawyers

Mediators should be aware that the American Bar Association has apparently given its stamp of approval to the practice of “puffing” in negotiation, including caucused mediations:

Under Model Rule 4.1, in the context of a negotiation, including a caucused mediation, a lawyer representing a party may not make a false statement of material fact to a third person. However, statements regarding a party’s negotiating goals or its willingness to compromise, as well as statements that can fairly be characterized as negotiation “puffing,” are ordinarily not considered “false statements of material fact” within the meaning of the Model Rules.

Frankly this is way too nuanced for me, and I don’t think the ABA has done mediators and lawyers any favors with this “clarification”. Puffing good, lying bad–you be the judge.

You can download “Lawyer’s Obligation of Truthfulness When Representing a Client in Negotiation: Application to Caucused Mediation” in PDF here.

(Thanks to Knight on Family Law for the link.)

Technorati tags: Lawyers, mediation, negotiation

Where would mediators be without controversy and conflict? In a way it’s ironic that the work we do might ultimately put us all out of business if only we do it well enough.

Speaking of controversy, especially the intractable kind, few state court opinions in recent years have sparked as much controversy both locally and nationally as did Goodrich v. Department of Public Health, the Massachusetts Supreme Judicial Court decision which held that the Massachusetts Constitution forbids the Commonwealth from denying the benefits and protections of civil marriage to same-sex couples.

Opponents of gay marriage in Massachusetts wasted no time in circulating an initiative petition to define marriage as the union of a man and woman, which Attorney General Tom Reilly, in a highly disputed move, subsequently certified to appear on the November 2008 state ballot.

Supporters of same-sex marriage have fired their own shot across the marital bow in filing Johanna Schulman v. Thomas Reilly et al., a civil action for declaratory relief relating to this petition with the Supreme Judicial Court, which will hear arguments in this matter at 9:00 a.m. on Thursday, May 4, 2006.

Webcasts of oral arguments, including this one, are viewable online at the Suffolk University Law School web site at http://www.suffolk.edu/sjc/.

Last night an esteemed colleague kindly emailed me the following quote, attributed to Sandra Day O’Connor:

The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.

I think that many of us–alternative dispute resolution professionals, lawyers, and ordinary citizens–would wholeheartedly agree.

Justice O’Connor’s words acquire special meaning just one day after Harvard Law Professor Frank Sander, a pioneering leader of the modern alternative dispute resolution movement, was honored for his numerous contributions to the ADR field.

Thirty years ago, Chief Justice Warren Burger invited Professor Sander to present a paper at the Roscoe Pound Conference of 1976, a historic gathering of legal scholars and jurists brought together to discuss ways to address popular dissatisfaction with the American legal system and reform the administration and delivery of justice. Sander’s paper, “The Pound Conference: Perspectives on Justice in the Future“, profoundly influenced and transformed both ADR and the American legal system. It has in many ways acquired the status of a sacred text for ADR professionals; it is at once history and cultural narrative.

Sander reminded conference participants of the limitations of traditional litigation with its “use of a third party with coercive power, the usually ‘win or lose’ nature of the decision, and the tendency of the decision to focus narrowly on the immediate matter in issue as distinguished from a concern with the underlying relationship between the parties.” He urged conference participants to envision alternatives, a “rich variety of different processes, which, I would submit, singly or in combination, may provide far more ‘effective’ conflict resolution.” And he reminded them of “the central quality of mediation”, namely “its capacity to reorient the parties toward each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one another.”

Sander was one of those early pioneers who blazed rocky trails that 30 years later are now well-traveled roads. The institutionalization of ADR is virtually complete. No longer novel and revolutionary, ADR has become commonplace, woven tightly into the fabric of legal, commercial, workplace, community, academic, and civic interactions.

This large-scale integration of ADR, however, as largely positive as it has been, has unfortunately produced problems of its own.

In an age of tort reform and mandatory arbitration clauses, ADR has been exploited as a means of concealing civil wrong or criminal misconduct or preventing the powerless from seeking justice against the powerful, as this recent article from NorthJersey.com reminded me. (For a full analysis of this issue, please see this post from March 2005, “The company we keep: ADR, tort reform, and the erosion of justice” (selected last month as a Gather.com Editor’s Pick), issued as a call to arms to my profession and a rebuke to those few misguided mediators who all too eagerly denounce litigation as an unnecessary evil).

Thirty years after the groundbreaking Pound Conference is a good time for perspective taking as the ADR field advances into the 21st century. It’s an opportunity to remember our roots.

ADR was founded on notions of greater access to justice for all, improved satisfaction with dispute resolution processes, and meaningful choices for resolving disputes in mutually satisfying ways. Sander and those early pioneers envisioned a multi-door courthouse, with doors swinging wide open to a broad range of dispute resolution processes, where disputes could be efficiently addressed through the mechanism best suited for the parties and the issues involved.

Sanders emphasized the need “to reserve the courts for those activities for which they are best suited and to avoid swamping and paralyzing them with cases that do not require their unique capabilities”. At the same time, Sander recognized the legitimacy of the “need to retain the courts as the ultimate agency capable of effectively protecting the rights of the disadvantaged”.

These should remain our bedrock principles. Justice, like ADR, must remain accessible, to the powerless and the powerful alike. Otherwise alternative dispute resolution ceases to be an alternative at all. As ADR professionals, let us work to keep the multiple doors wide open–before they slam shut in the faces of those who are most vulnerable.

Technorati tags: ADR, alternative dispute resolution, Law, Mediation

An interesting report on mediation appeared this week in the U.K. online journal Legal Week by attorney Tim Ashdown, a commercial litigator and partner with the British law firm DMH Stallard.

The article describes benefits mediation offers clients in commercial litigation, including early settlement, cost savings, more direct participation by clients in their own case, and greater flexibility in creating outcomes than litigation offers. The article also draws attention to factors which can limit mediation’s effectiveness.

However, that’s not the reason why you should read this report (despite the fact that we mediators always appreciate a thoughtful, well-written article highlighting the benefits mediation offers written by someone who understands the subject matter very well indeed, as Ashdown does).

What’s most striking about this article is its discussion of a current trend in British jurisprudence for judges to sanction litigants who “unreasonably refuse” to go to mediation to resolve their disputes, particularly when a judge has recommended mediation. Ashdown cites a number of examples of cases in which courts in Britain have approved cost sanctions against parties who have refused to mediate.

This imposition of sanctions in my view undermines two of mediation’s defining principles: voluntariness and self-determination. These principles are among the chief factors which account for mediation’s tremendous appeal for disputants. The process works precisely because of this absence of coercion—parties are more willing to participate in a process which is theirs alone and in which they themselves define the outcome. Autonomy matters.

It is true that courts everywhere—in Britain and certainly here in the U.S.—promote mediation and other forms of ADR as a means of relieving the demands litigation places upon overburdened court systems. But here in the U.S., at least here in the state in which I practice, we approach the issue of sanctions in mediation very differently.

In Massachusetts, Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution requires court clerks to make information on court-connected dispute resolution available to both attorneys and pro se parties, and requires attorneys to

provide their clients with this information about court-connected dispute resolution services; discuss with their clients the advantages and disadvantages of the various methods of dispute resolution; and certify their compliance with this requirement on the civil cover sheet or its equivalent.

However, although Rule 6 permits a court to impose sanctions on parties who fail to attend a scheduled dispute resolution session, it also prohibits courts from imposing sanctions for failure to settle and stresses the importance of ensuring that settlements are reached without coercion, particularly when parties are unrepresented by counsel:

Courts shall inform parties that, unless otherwise required by law, they are not required to make offers and concessions or to settle in a court-connected dispute resolution process. Courts shall not impose sanctions for nonsettlement by the parties. The court shall give particular attention to the issues presented by unrepresented parties, such as the need for the neutral to memorialize the agreement and the danger of coerced settlement in cases involving an imbalance of power between the parties. In dispute intervention, in cases in which one or more of the parties is not represented by counsel, a neutral has a responsibility, while maintaining impartiality, to raise questions for the parties to consider as to whether they have the information needed to reach a fair and fully informed settlement of the case.

Voluntariness and self-determination, along with confidentiality, may be under assault here in Massachusetts: as some of you no doubt recall, back in January a Superior Court judge issued a decision which penalized a party for failing to heed a mediator’s advice. This decision, fortunately, has been appealed.

As I have discussed here before, this is a path we do not want to embark upon. Sanctioning parties for failing to settle through mediation will only erode support and public confidence in the mediation process. While this approach may provide incentive to parties in Britain to come to the mediation table and reach a deal, there are other and better ways to promote settlement through mediation.