GPSolo Magazine - Oct/Nov 2003

Resolution Without Litigation: Are Courtrooms Battlegrounds for Losers?

What we are doing in our legal system is not working. Clients are unhappy with their lawyers, the system, and the results. Many lawyers are extraordinarily unhappy; and the number of lawyers impaired by stress and substance abuse is still rising. Nonlegal dispute resolution mechanisms in society by and large have failed, and parties still depend on litigation processes to resolve conflict. As a result, society in general is suffering from the effects of the law's overly adversarial, other-blaming, position-taking, and hostile approach to conflict resolution.

Perhaps in response to these developments, a number of alternative approaches to law practice are emerging to replace the outmoded monolithic system. Since about 1990, a number of seemingly unrelated developments, or vectors, have appeared, all focused on reaching results for clients that optimize the clients' goals, satisfaction, emotional and relational health, and overall well-being. As their similarities became evident, they began to coalesce into a larger movement across the country, which has been called the "comprehensive law movement," although terms such as transformative law, integrative law, and law as a healing profession also are used. Although the movement is not explicitly nonadversarial, it focuses on resolving legal matters in a way that leaves the parties in better—or at least no worse—shape, overall, than they were at the outset. It delights in creative win-win solutions and tries to preserve important interpersonal relationships by focusing on the parties' emotional well-being and functioning. As a result, the comprehensive law movement often encourages nonlitigious resolution.

Attorney Arnie Herz, for example, represented an imposing ex-football player we shall call John Smalls, in a dispute with the new owners of the company Smalls had just sold, after ten years of successful solo ownership. Smalls was furious with the new owners' treatment of him as an employee post-sale and with their mismanagement of the company. Unfortunately, he had signed a noncompete agreement as part of the sale and felt bound by it, despite his frustration.

Determined to sue the new owners for mistreatment and mismanagement, he approached Herz, who opined that a lawsuit might succeed but would cost well over $100,000 in fees and costs to litigate. Smalls was ready to move, but Herz decided to slow him down a bit and asked, "If you could have anything you wanted in your life, what would you want your life to look like six months from now?" Smalls said more than anything, he wanted to be free of the new owners and wanted to make more money. He thought he could make a lot more money without them but didn't want to "let them off the hook."

Frustrated that Herz was trying to talk him out of suing, Smalls commented, "You're too nice-I need a tough litigator," packed up, and started to walk out of the office. Taking a big risk, Herz responded, "I know you think I'm not tough, but in all my years of experience, I think you may be the weakest person I've worked with. You set out a vision that was to be free of these people-you didn't mention that you wanted to punish them, teach them a lesson, or spend $100,000 of your own money and five years of your life doing so. What I see is that you don't have the strength to hold on to your own vision and deal effectively with your own anger. And I'll bet you've been doing this all your life."

At first Smalls flushed with anger. But something in what Herz said rang true. He sat down and began listening and discussing; together, they agreed on a plan of action that involved a more collaborative, nonlitigious approach to resolving the matter.

Smalls was freed from his noncompete clause three weeks later. The new owners teetered on the edge of bankruptcy for years—as Herz had predicted; even had Smalls sued, he would not have been able to collect a dime. Freed of the new owners, Smalls was in fact able to make a lot more money. Financially, the plan was a huge success. Personally, Smalls later said, the process of resolving this legal matter had allowed him to learn how his anger had been controlling his life, affecting his relationship with his wife and his kids, and blocking him from his full potential.

Herz's approach to representing Smalls is one illustration of how a comprehensive lawyer might conduct such a law practice. Herz went beyond the law to ask about the client's deepest needs, goals, and desires and then used that information to create, with the client, the best strategy. Admittedly, he took a major risk early in the lawyer-client relationship, and not all comprehensive lawyers would be comfortable doing so. Using excellent interpersonal skills, though, Herz assessed that Smalls was a no-nonsense person who would respond only to straight talk—which he did. Litigation in this case only would have wasted time and money and fueled the client's excessive anger. The final process and outcome were not only financially successful but also personally and emotionally beneficial for Smalls.

A Variety of Options

The comprehensive law movement is made up of at least nine converging vectors: collaborative law, restorative justice, procedural justice, transformative mediation, therapeutic jurisprudence, problem-solving courts, preventive law, holistic justice, and creative problem solving. Like members of a family, the vectors share things in common yet are individually different from one another. All of them intersect in two areas, though: First, they seek to optimize the well-being of the people involved in the legal matter by maximizing their emotional health, the quality of their personal relationships, their moral development, or their social integration. Second, they encourage the lawyer and client to focus on more than just the client's legal rights and duties (or the economic bottom line). This second feature is the "rights plus" approach, which considers such factors as the client's wishes, goals, desires, needs, resources, emotions, relationships, values, morals, and beliefs.

Collaborative vs. Adversarial Practices

A frenzy of questions usually floods the minds of practicing lawyers who encounter a vector of the comprehensive law movement for the first time: Isn't this just rolling over and playing dead? Are you asking lawyers to be psychologists? Doesn't this constitute paternalistic meddling in clients' affairs? Won't this make me a whole lot less money? Will I be seen as less competent? Will I lose clients if I practice law this way? What if the client wants a pit-bull attorney? Most of these questions focus on the wrong thing.

The comprehensive law movement is not about being exclusively collaborative, nonadversarial, "nice," or touchy-feely. It is not about backing down and being a pushover. It is about putting some new tools in the lawyering tool kit beyond the solitary "hammer" of litigation that we learned in law school (and maybe the screwdriver of mediation we picked up in practice). All areas of law practice can benefit from learning to properly apply the comprehensive law movement's wide variety of conflict resolution processes and approaches. We do need to know when to use what tool, however, so here are a few answers to the nervous questions lawyers commonly ask when hearing about comprehensive law practice:

  • We do not become psychologists; we become skilled questioners and good listeners who have a better idea when referrals to psychologists might be best and who can work with them collaboratively.
  • We do not tell clients what they should or should not do, or how they feel or should feel. We elicit from them the big picture—their deep, long-term goals—using excellent communication skills. Then we work within the lawyer-client team to develop ways to achieve those goals.
  • We do not always suggest collaborative dispute resolution processes. For some clients hardball litigation is either the most therapeutic strategy or the only way for them to achieve their truest personal and legal goals.
  • We must be capable of not only threatening but also providing pit-bull representation, even if only to bring a recalcitrant opponent to the table. Being proficient at traditional approaches is necessary to successfully practice comprehensive ones.
  • We are careful not to suggest collaborative approaches to legal matters only because we ourselves are inherently uncomfortable with confrontation or conflict.

Lawyers who are proficient in practicing this type of law report no loss of income and a great increase in their clients' and their own satisfaction with their work. The client has the final say regarding which approach to pursue. Comprehensive lawyering provides the client with knowledge of all possible consequences of potential legal actions, including the emotional, developmental, relational, moral, and spiritual effects, as well as the legal and economic results.

To achieve these goals, the comprehensive law movement often (though not always) utilizes options that are nonadversarial, nonlitigious, noncompetitive, and collaborative. The results almost always are creative, interdisciplinary, and extraordinarily satisfying to both the lawyers and clients involved.

A number of other growing "movements" in the law sometimes are included under the comprehensive law movement umbrella. These are law and spirituality; mindfulness meditation; humanizing legal education; lawyering that interjects religious values into law practice; the movement to resurrect secular humanist values in law; the politics of meaning; the efforts of the Contemplative Mind & Society Institute (including the Yale Law School meditation project sponsored by the Fetzer Institute); and affective lawyering and rebellious lawyering, both of which are important in the domestic violence context. However, this article will concentrate on providing a brief explanation only of the nine primary branches of comprehensive law.

Collaborative law is a nonlitigious, collaborative process employed mainly in divorce law, in which the spouses and their respective attorneys resolve their issues outside of court in a series of four-party processes. Litigation usually is not instituted until settlement is reached. The attorneys are contractually forbidden from representing their clients in court should the agreement process break down. Because of this, the attorneys' financial interests are the same as the clients': to reach settlement (in contrast to the usual process, where the lawyers "win" whether the clients settle or not because they simply litigate if negotiations break down). Collaborative law acknowledges the existence of a strong psychological component to divorce and to the lawyer-client relationship; emotions, needs, transference, and other interpersonal issues are openly acknowledged and dealt with, in order to maximize results of the four-way conferences. Although currently being used only in the domestic area, collaborative law could be appropriate for other areas, such as employment law. Go to www.collaborativelaw.org for additional information.

Restorative justice (RJ) is a set of criminal justice processes through which criminal sentencing and rehabilitation are decided by the community, victim, and offender working in a collaborative process. In the United States it is employed most often with juvenile offenders, although it is more widely used in Australia, Canada, and the United Kingdom. An RJ process may be as simple as post-sentencing victim-offender mediation or as complicated as sentencing done in a community conference with all parties present. It emphasizes the relationships among the offender, the victim, and the community instead of employing a top-down, hierarchical system of imposing punishment.

Having the victims, communities, and offenders actively work together empowers victims in their search for closure; confronts offenders with the factual, human impact of their behavior; and promotes restitution for criminal acts to victims and communities. Dialogue and negotiation are central to restorative justice, and problem solving for the future is considered more important than simply establishing blame for past behavior. Balance is sought among the legitimate needs of the victim, the community, and the offender. For additional information, contact the Center for Restorative Justice and Peacemaking at the University of Minnesota School of Social Work, http://ssw.che.umn.edu/rjp.

Procedural justice stems from research findings that litigant satisfaction has less to do with the actual outcome of a case (winning/losing or the amount of damages awarded) than with three psychological factors: (1) being treated with respect and dignity, (2) being heard and having an opportunity to speak and participate, and (3) how trustworthy the authorities appear and behave. Elements of procedural justice are being used by some to reengineer dispute resolution processes (litigious and nonlitigious) in order to incorporate these three important features.

Transformative mediation (TM) is a form of alternative dispute resolution set forth in Baruch Bush and Joseph Folger's 1994 book The Promise of Mediation. TM views conflict as a destabilizing crisis in human interaction rather than a violation of rights or a conflict of individual interests. Its three-person mediations seek to restore balance between self and other; to transform conflict into a positive, constructive process; and to encourage parties to (1) regain their sense of strength and self-confidence (the "empowerment" shift) and (2) expand their responsiveness to one another (the "recognition" shift, akin to empathy). By focusing on these goals, the parties are moved toward increased personal development and enhanced personal and interpersonal skills. Additional information is available at www.transformativemediation.org.

Therapeutic jurisprudence (TJ) is one of the most well-known vectors and has the broadest applications. Since the early 1990s, it has focused on the therapeutic or counter-therapeutic consequences of laws and legal procedures on the individuals involved, including clients, families, friends, lawyers, judges, and communities. It attempts to reform law and legal processes in order to promote the psychological well-being of the people they affect. In deciding on legal courses of action, TJ considers the law's impact on emotional life and psychological well-being, viewing the law (its rules, procedures, and actors) as a social force that can produce therapeutic or nontherapeutic results. Although it does not hold that therapeutic concerns are more important than other factors, it believes the law's role as a potential therapeutic agent should be recognized. TJ has been applied to almost every area of law, including mental health, family, employment, health, criminal, and elder cases; appellate practice; criminal sentencing; litigation; and estate planning. It has been applied to police work and is very popular with judges. Find more information at www.therapeuticjurisprudence.org, which manages a listserve and contains an extensive bibliography.

Problem-solving courts are a result of judges' enthusiastic application of TJ to the adjudication process. Frustrated with recidivism and repeat appearances, judges developed specialized, multidisciplinary "problem-solving" courts focused on resolving the interpersonal issues underlying a legal problem, instead of punishing defendants or assigning fault. The courts take a long-term, relational, interdisciplinary, healing approach to judging. In the criminal setting, judges create collaborative and ongoing relationships with offenders and helping professionals. The judges also supervise the offenders' rehabilitation efforts. Examples of these specialty courts are drug treatment courts, mental health courts, domestic violence courts, and unified family courts. Drug treatment courts are reporting impressive drops in recidivism as a result of their changed focus and approach. The nonadversarial nature of problem-solving courts is consistent with the approach to civil matters taken by vectors such as collaborative law and transformative mediation.

Preventive law has been around for many years. Like preventive medicine, it explicitly seeks to intervene in legal matters before disputes arise and advocates proactive intervention to head off litigation and other conflicts. It emphasizes the lawyer-client relationship, relationships in general, and planning. In recent years, in order to describe how to practice TJ-oriented law, some practitioners began to integrate preventive lawyering techniques with TJ concepts, resulting in therapeutically oriented preventive law. Visit the National Center for Preventive Law at www.preventivelawyer.org for additional information.

Holistic justice, which began as a grass- roots movement among practicing lawyers, acknowledges the need for a humane legal process and high levels of satisfaction for all participants. Its core concepts include respecting the dignity of each individual; promoting peaceful advocacy and holistic legal principles; fostering responsibility and inclusion; and encouraging compassion, reconciliation, forgiveness, and healing. This interdisciplinary approach allows lawyers to incorporate their own morals and values into client representation and takes a broad view of legal problems and possible solutions. More information is available at the website of the International Alliance of Holistic Lawyers, http://iahl.org.

Creative problem solving (CPS) is a broad approach to lawyering that is explicitly humanistic, interdisciplinary, creative, and preventive. CPS seeks to prevent legal problems wherever possible and to creatively solve those that exist, incorporating traditional analytical and nontraditional creative problem-solving processes. CPS is associated with the McGill Center for Creative Problem Solving at California Western School of Law, www.cwsl.edu. CPS's use of preventive law, therapeutic jurisprudence, and transformative mediation elements clearly illustrates the merging of comprehensive law practice's many vectors.

Applying the Vectors

Some of the vectors are practical, concrete, and tangible, while others are more broad and theoretical, serving as lenses through which the more concrete vectors can be evaluated. For example, dispute resolution alternatives traditionally include litigation, arbitration, mediation, private judges, and negotiation; the new techniques utilized in collaborative law, restorative justice, and transformative mediation can easily be added to these options. TJ, procedural justice, preventive law, holistic justice, and CPS can help lawyers evaluate particular legal problems. For example, a TJ perspective will help the lawyer decide whether a process is therapeutic or not and, if it is, how it might be made more so. A holistic approach examines how the process takes into account the healing of both client and lawyer. Procedural justice techniques would review how the process might affect the participants psychologically; and CPS would help the lawyer decide whether the process allows for the broadest, most creative approach to solving the problem. A related lens might be religious lawyering, which would examine whether the approach is consistent with the lawyer's and client's religious beliefs.

Lawyers who were trained to practice law in the traditional manner may require additional training in order to feel proficient in practicing comprehensive law approaches. Training is regularly available in collaborative law, restorative justice, and transformative mediation through their individual websites. Conferences on therapeutic jurisprudence, preventive law, holistic justice, and creative problem solving are typically available annually. The Renaissance Lawyer Society is a clearinghouse that networks lawyers and provides information about trainings and coaching in the comprehensive law movement generally ( www.renaissancelawyer.com).

The comprehensive law movement may be part of the answer to the malaise infecting the legal profession and, some say, to the ills affecting society as a whole. If the growth of its "vectors" since 1990 is any indication, its approach is well overdue and sorely needed. At its best, the comprehensive law movement offers approaches to resolving conflicts and legal matters that help, not harm, people, relationships, and society. At the least, it offers us as lawyers more tools for our tool kit. Either way, our tool kits appear to be expanding. Why not add to yours?

Susan Daicoff is a professor at Florida Coastal School of Law and a fellow of the International Centre for Healing and the Law. She can be reached at sdaicoff@fcsl.edu.

 

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