Transformational Models, Trends & Approaches

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 Transforming the Legal System: New Approaches Expand Choices in Law Practice

Excerpt from an article by J. Kim Wright, J.D.; Dolly M. Garlo, R.N., J.D., P.C.C.; and Marty Price, J.D.

Having replaced jousting and dueling, the adversarial method has served for centuries as virtually the only method of dispute resolution western societies possess. But as the old saying goes: "If a hammer is your only tool, every problem begins to look like a nail." Because lawyers are seen only as hammers, they tend to attract individuals with sometimes vengeful motives, while large portions of the rest of society are repelled and want to "keep the lawyers out of it," thus reducing the reputation of lawyers in the general field of dispute resolution. Mediators, religious officials, neighborhood organizations, and many others have rushed to serve a public often yearning in many cases for less-adversarial methods of dispute resolution, especially when the parties have an ongoing relationship the adversarial system would tend to damage.

Within the last few years, there has been an explosion of new approaches to practicing law that offer lawyers alternative tools for dispute resolution. While pre-dispute and dispute-avoidance work have long been part of legal practice on the transactional side, these notions have gained firmer footing in the dispute-resolution realm as well, by being more tech savvy, more aware of the backgrounds of the parties, more spiritually aware, and more psychologically educated. All of this reflects the diversity of ever-more informed and sophisticated consumers of legal services.

Besides offering practical benefits to clients, more attention to these new models of practice has also had benefits for the lives and spirits of lawyers, individually and collectively, as is being documented by ABA Journal Associate Editor Steven Keeva's research and writing on lawyers. Although Keeva chronicles many different approaches, what they all seem to have in common is rejecting a strict focus on the "legally relevant facts" to the exclusion of the context, and embracing the client's story and the potential for healing, i.e., restoring the social fabric that has been ripped apart by the dispute. This exciting (and often redemptive) shift for lawyers marks an important arena in which creative thinking and approaches to service can make an important contribution to greatly increased job satisfaction for lawyers.

Susan Daicoff, professor at Florida Coastal School of Law, has been instrumental in bringing this shift to the attention of the legal profession and legal education. Daicoff, who is also a psychologist, was researching lawyer personality traits and the high levels of lawyer distress when she discovered many lawyers breaking away from adversarial approaches and creating new ways of practicing law. She noticed that these lawyers expressed higher satisfaction and fulfillment with the practice of law, and began to study these new approaches. She began to see similarities and a common foundation that she says is a decided shift in approach. Daicoff refers to the overall shift as comprehensive law or transformational law, encompassing the notion of law as a healing profession. Others have coined terms like holistic law, therapeutic jurisprudence, preventive law, restorative justice, law and healing, collaborative law, transformative or transformational law, creative problem-solving, and procedural justice.

Daicoff sees all of the comprehensive law practices as part of an overall evolution akin to medicine's recent embrace of parts of alternative medicine. It began with early mediation and alternative dispute resolution programs that have now been integrated into traditional legal practices. The comprehensive law movement has expanded further from there, and now offers even more practice choices. Originally a math major, Daicoff calls the different legal practice approaches "vectors," a term that indicates both magnitude and direction. While each vector, or legal practice approach, is a bit different from the others, they all have common characteristics. They represent a move away from what is increasingly being considered the negative aspects of the adversarial process: the other-blaming, entitlement-oriented, position-taking, and hostile one-upmanship behaviors in conflict resolution that have become the darlings of the media and sensationalized talk shows. The new approaches add more cooperative, comprehensive, humanistic, healing, and even spiritual aspects to the traditional forms of law practice being taught and utilized in the profession. The commonality in the new approaches is that they are focused on optimizing human well-being by expressly seeking to eliminate brutal and contentious adversarial approaches to advocacy and problem-solving, as well as to avoid legal problems altogether. Rather than defining problems only as legal concerns (strict legal rights and obligations demarcated by the boundaries of published statutes and judicial opinions), these more comprehensive approaches include humanistic values such as overall well-being, relationships, feelings, needs, resources, meaning, values, and goals — an idea that is described by the term "rights plus."

Each vector has initially developed independently with its own name and focus, often in different practice areas. For example, collaborative law has become a popular tool in family law, and restorative justice is a tool used in criminal law.

By whatever name, each of these approaches offers support for transforming the legal system to serve other important needs besides rights-based litigation of disputes "solved" solely by the transfer of money, and confirm the notion that other tools are sorely needed in order to solve disputes. The new techniques include the following:

• Utilizing law as a modality for healing and helping, not only for resolving problems;
• Focusing on the future and reconciling relationships — listening, forgiving, completing, and moving on — rather than simply looking to the past and punishing transgressions;
• Viewing legal issues in light of existing or ongoing relationships between the parties and the greater community, for the purpose of improving connections rather than isolating or separating people;
• Including preventive models, proactively identifying risks, and taking actions that will prevent conflict;
• Creating win/win/win solutions where the parties involved, the underlying community, and overarching societal values all benefit;
• Fashioning a better world for all that is healthy, diverse, creative, and respectful of human rights and values;
• Including a humanistic approach to law practice that is sensitive to the needs, values, and highest good of the client, society, and legal practitioners;
• Consciously constructing a law-practice environment where judges, lawyers, and legal staff can grow;
• Believing that legal problems occur within a system that is an organic process which can respond to the needs of clients, society, and lawyers alike; and
• Defining a legal system that is based not only on problem solving, but also on enabling everyone to live and work together in peace.

Note that these new visions in law are not intended to replace traditional practice, nor are they appropriate in every instance. They are appropriate in many instances, but most lawyers are unable to apply them.

Over 95 percent of litigation, often filed simply to preserve legal rights, never makes it to trial and is resolved outside of the courtroom. Settlement, by its very nature, is far more flexible than a courtroom. In a courtroom there might be financial accountability, but there will never be an apology or an extended opportunity to explain. Witnesses and parties can only answer the questions the lawyers pose. Thus, the prospect of having more tools for such out-of-court settlements and resolutions is a foundation for these visionary practice developments.

The unhappiness of most lawyers with the practice has by now been so well documented that it need not be repeated here. The inclusiveness of the comprehensive law movement focuses on solutions to this unhappiness by encouraging lawyers to design their own practices to reflect the lawyers' personality types, unique behavioral styles, values, and goals, while being responsive to what works best for each individual client and situation. An entire field of "coaching" has developed to help lawyers do just that.

A recent study concluded that 70 percent of the "winners" in litigation were unhappy in the end. One can safely assume that close to 100 percent of the "losers" in litigation were also unhappy. Given the unhappiness of most lawyers, can we risk moving beyond arbitration and "settlement conference mediation" to try some new approaches? Economics, at least, would suggest that lawyers ignore the unhappiness around them at their own peril. And justice may demand that we hear our clients more fully. And some local rules may already allow the parties to stipulate to other forms of dispute resolution.

In these pages you will find descriptions of many different trends, approaches, and models that are being used by lawyers to resolve legal matters. Many people who have read these descriptions have reported that after a while, they all sound alike. (Our point exactly!) Some find a particular approach that resonates with them and seek the training or life transformations that are required to implement that approach. And, being the intelligent creative souls that we are, some lawyers read about all of them and then create their own approaches based on the descriptions here.