Category Archives: Innovations in the Practice of Law

The Lawyer as Problem Solver Award: A healthy pandemic of fair and creative solutions

Lawyer as Problem SolverHere in the U.S. this summer’s cable TV lineup includes “Damages“, a new series about, surprise surprise, lawyers. Already viewers have seen one of the principal characters, a scheming and ambitious plaintiff’s lawyer (played by bunny-killing star of “Fatal AttractionGlenn Close), use deception to trick her opponent into settling a personal injury suit on the courthouse steps, bully her associates, manipulate clients, and arrange to have a witness’s dog killed. And that was just the first two episodes.

Meanwhile, quietly and without fanfare, a portrait of a different kind of lawyer will be revealed–a portrait that comes closer to depicting the work that many lawyers perform, far from the attention of the media and the public’s eye.

On Friday, August 10, 2007, the ABA Section of Dispute Resolution will be honoring The Innocence Project and internationally respected scholar and ADR professional David Sandborg with Lawyer as Problem Solver Awards. This Award, created in 2002, recognizes attorneys for their ability to use their legal skills in creative ways that benefit clients and communities.

This Award reminds all of us of the important contributions that attorneys can make. In fact, the Award honors not only the recipients but “all lawyers who use their legal skills creatively to build positive solutions for their clients and the community as a whole.”

I was struck by the words of last year’s honoree, David Plant. (To read his full remarks, click here and scroll down to the section captioned “More About Us”). He made these observations about the lawyer’s role as problem solver:

…David Berg, in his recent book “The Trial Lawyer – What It Takes To Win”, confesses his fear that the “great war stories” of future generations of trial lawyers will begin, “And then, I looked that mediator in the eyes and I said … .” Tongue in cheek or not, David’s fear is unjustified. Trials will always be necessary. Great trial lawyers will always have great war stories of real trials. Trying lawsuits with uncommon skill will always be a valued calling. But that is not all the profession is about.

From my vantage point, each of us is practicing in order to assist individuals and institutions, in all shapes and sizes, in all colors and hues, in all moods and on all missions, to find workable solutions to vexing problems. To the extent those problems entail conflicts and disputes, the vast majority can best be solved, and will best be solved, by face to face negotiation, candid discussion, and good faith, collaborative and creative exploration of options. In assisting parties in those discussions, and in facilitating those negotiations, lawyers will continue to serve the profession’s highest purpose. The client will rise to the surface as the person or institution of paramount importance…

To insure that we practice the problem-solving aspects of our profession at the highest level, I invite each of us to study Malcolm Gladwell’s book “The Tipping Point”. Then, I invite each of us to commit ourselves to becoming a virus, a virus whose mission is to beget and to propagate an epidemic – better still, a pandemic. We’ll be good viruses. We’ll inspire a healthy pandemic.

We’ll each empower each client –

to take control of that client’s own destiny,
to assess candidly each dispute the client has with another,
to identify honestly the client’s real interests and real needs,
to respect genuinely the other party’s real interests and needs,
to work empathetically with all others concerned to explore options, and to attempt authentically to find a fair and durable solution.

If we dare to practice, to learn and to implement this notion, we each shall have done a good piece of professional work. And our clients will have realized marvelous – even mysterious – benefits.

What can you do to become contagious?

New research makes the case for bringing litigants face to face through mediation

Mediation offers benefits when plaintiffs and defendants come face to faceIn “Consequences of Power,” an article to appear in the upcoming Harvard Negotiation Law Review, Vol. XII, 2007, and available as a PDF download at the Social Science Research Network, Tamara Relis, a postdoctoral research fellow at Columbia Law School and the London School of Economics Department of Law, reports on the results of a survey and analysis of litigation-track mediation in medical malpractice cases.

Relis finds evidentiary support for the value of bringing plaintiffs and defendants face to face, despite the efforts of counsel to keep them apart. Her findings reveal the disconnect between attorneys’ objectives and those of their clients and shows that plaintiffs and defendants are more closely aligned than one might suppose, seeking similar outcomes and desiring above all the opportunity to communicate. And Relis sees ample evidence for what mediators have long known from experience, namely that mediation meets needs beyond those which the legal system can remedy, something other than compensation or a favorable verdict. Mediation provides what Relis calls “human benefits”–understanding, forgiveness, empowerment, or merely the opportunity to be heard.

For the abstract and a link to the download in PDF, please visit the Social Science Research Network web site.

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Legal futurist sees new directions for dispute resolution and the practice of law

New directions seen for the future of dispute resolution and the practice of lawEarlier this year, I linked to a Times Online article by legal futurist Richard Susskind with his predictions about the future of legal practice and dispute resolution.

For those eager to learn more about what the future holds, via Slaw, the cooperative Canadian legal research and IT weblog, comes news that “The Next Ten Years“, Richard Susskind’s Society for Computers & Law 2006 Lecture, is available now both in podcast and in edited transcript form. Susskind sets forth his vision of the coming transformation in the nature of legal service, legal education, and dispute resolution that the future holds.

Not only lawyers but alternative dispute resolution professionals will want to pay close attention to Susskind’s views of technology’s influence on the evolution of the practice of law and the resolution of disputes, together with his prediction that client demand will shift focus from dispute resolution to dispute prevention.

And all of us will want to heed his reminder that “The best way to predict the future is to invent it”.

For more information on legal futurism, please see “The future is now: a strategic approach to dispute resolution and the law“, an article which appeared in November on this blog.

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30 years after the historic Pound Conference, a reflection on ADR and justice in the 21st century

30 years after the historic Pound Conference, it's time to reflect on ADR and justiceLast 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.

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BREAKING UP IS HARD TO DO: Mediation and collaborative law can make a difference for heterosexual and gay couples going through divorce

Dealing with divorceJust a few weeks ago on a chilly but gloriously sunlit January morning I attended the wedding of two dear friends at our local town hall. What made this particular wedding so unique is that the happy couple had been together for thirty-eight years before getting married. This was also the first marriage between two men to be performed in this small Massachusetts town.

The twenty of us who were present were deeply moved by this ceremony which honored almost forty years of devotion, commitment, and love between two life partners. Many other gay couples in Massachusetts have taken the same step since the Commonwealth legalized gay marriage: by conservative estimates, over 4,000 gay marriage certificates were issued in Massachusetts during 2004.

But just a few days ago I learned that another gay couple has regretfully chosen to end their months-old marriage. And others, too, have filed for divorce here in the Commonwealth.

These two very different cases illustrate what we know from experience: many marriages and relationships endure, but sadly they can also end in separation or divorce.

Divorce, a legal process, can easily become adversarial, and lead to increased stress and mental trauma. It doesn’t have to be that way. There are resources and options available for all couples, heterosexual and gay, for support throughout separation and divorce.

There are two processes in particular which can make a difference for couples going through a divorce: mediation and collaborative law.

Mediation provides a low-cost and confidential alternative to litigation. In mediation, a third party assists a divorcing couple have a constructive conversation about the issues they need to address as part of the process of obtaining a legal divorce. Those issues may include: division of assets and debts; spousal support; issues relating to children, including visitation and custody; and any issues that are unique to the relationship.

Mediation helps people talk through the issues that affect them and their families and reach agreements that are fair, workable, and make sense for them. Gay couples contemplating divorce may wish to think about working with a mediator who has experience with and is sensitive to issues affecting the gay community. The important thing is to find a mediator that you feel comfortable working with.

For information on mediation, visit Mediate.com or the web site for the Association for Conflict Resolution. Residents of Massachusetts may be interested in exploring the web site for the Massachusetts Council on Family Mediation.

Collaborative law is another option available to divorcing couples, which can be used on its own or in conjunction with mediation.

According to the web site for the Massachusetts Collaborative Law Council, the goal of collaborative law is “to protect the privacy and dignity of all involved”:

We acknowledge that the essence of “Collaborative Law” is the shared belief by participants that it is in the best interests of parties and their families in typical Family Law matters to commit themselves to avoiding litigation.We therefore adopt this conflict resolution process, which does not rely on a Court-imposed resolution, but relies on an atmosphere of honesty, cooperation, integrity and professionalism, geared toward ensuring the future well-being of the family.

Our goal is to eliminate the negative economic, social, and emotional consequences of protracted litigation to the participants and their families.

It requires the free and open exchange of information, and envisions working together with other experts, including psychologists, financial experts, and others, and sharing the recommendations and work product of those experts.

For more information about collaborative law, you can also visit the web site for the International Academy for Collaborative Professionals.