|Law as a Healing Profession
The adversarial model of law practice has survived for centuries and will continue to be a foundational tool for lawyers. As the old saying goes, though, 'If a hammer is your only tool, every problem begins to look like a nail.' While most lawyers are trained to approach every conflict as possible litigation, in reality, most legal disputes never make it to trial and are resolved earlier and earlier. This is especially true when the parties have an ongoing relationship.
In the last few years there has been an evolution of new theoretical approaches to practicing law, with new designs in practice models that complement and offer alternative tools. While pre-dispute and dispute-avoidance work has long been part of legal practice on the transactional side, with its focus on planning and prevention, such notions have gained firmer footing in the dispute resolution realm as well. These new practice models are responsive to the information age, to changes that have challenged our legal profession and society, and to what is wanted and needed by ever more informed and sophisticated consumers of legal services. In addition to very practical benefits to clients, more attention to these new models in legal education and practice has benefits for the lives and spirits of lawyers, individually and collectively. This is an exciting shift for lawyers and marks an important arena in which creative thinking and approaches to service can make an important contribution.
Susan Daicoff, an associate professor of law at Florida Coastal School of Law in Jacksonville, Fla., has been instrumental in bringing to the attention of the legal profession and legal education this shift to newer practice models. Daicoff, who is also a psychologist, was researching the high level of lawyer distress, and lawyer personality traits, 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 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, collaborative law, transformative (or transformational) law, creative problem-solving and procedural justice.
Daicoff sees all the comprehensive law practices as part of an overall evolution. For law, that evolution is akin to the more inclusive complementary health- care practices in the medical profession. It began with early mediation and alternative dispute resolutions 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. More of her views and teaching approaches can be seen on her website at www.fcsl.edu /faculty/daicoff/law.htm.
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. Their commonality 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. The so-called movement, however, includes these various approaches describing an overall evolution in law practice that seems to mirror a greater societal evolution likewise focused on such humanistic values.
By whatever name, each of these approaches offers support to a transformation of the legal system. Many of those engaged in them consider themselves to be indicative of the future of law practice, responsive to the rapid changes in society and a movement toward a workplace (both for lawyers and their clients) interested in personal and spiritual growth opportunities as well as vocational activities. While the approaches may sometimes seem different, and will be described in more detail below, there is a common connection of values and principles. They include the following:
Note that these new visions in law are not intended to replace traditional practice, but rather to provide and include alternative tools to address legal maladies for which traditional legal processes are not necessarily the best means to a successful resolution — and to make these tools more available to practicing lawyers, law students and professors, and particularly consumers of legal services. Litigation, jury trials and judicial interpretations will remain an important aspect of law practice and the development of societies governed by the rule of law. Defining and advocating for important rights and justice will always be a part of the role of lawyers. However, most litigation, often filed simply to preserve legal rights, never makes it to trial and is resolved outside of the courtroom. Thus, having more tools for such resolutions, in addition to the trial advocacy skills that receive the greatest focus in legal education, is a foundational part of these visionary new practice developments.
The inclusiveness of the comprehensive law movement also encourages lawyers to design practices that reflect the lawyer’s personality type, unique behavioral styles, values and goals, while being responsive to what works best for each individual client and situation. In doing so, they reveal new methods of legal service delivery more in keeping with the organizational culture and business style of people and companies that will seek and embrace such approaches as they become more known. That effort requires client education and attempts to de-mystify the law, approaches that can create greater client loyalty. Further, there has been greater dialogue among attorneys about dissatisfaction with the litigation style that has come to be described as 'Rambo-like.' Many lawyers complain of lack of civility; some are choosing to leave the practice of law. Since 1989, when the book Running From the Law was first published by the late Deborah Arron, a niche industry has grown up around career counseling for lawyers. The other practice models and approaches offer an alternative to leaving the practice of law, and they increase creative options and processes for addressing client legal issues.
The following is a short summary of some of the models and approaches, with reference or contact information that will allow the reader to learn more about each one.
Also called 'TJ,' this is an interdisciplinary perspective that focuses on the law’s impact on the emotional and psychological health of the participants, mostly the clients — the people affected by the law as contrasted by (though not excluding) the people working within the legal system. The goal is to bring sensitivity into law practice. Thereapeutic justice focuses on listening to clients with an awareness of psychological and emotional issues including stress, confidence and trust. It also looks at the court system and how it impacts society. Therapeutic justice provides a new contextual platform by which to look at the concept of jurisprudence and the underlying purposes of the legal system. In health-care systems, in employment and patient relations contexts, as well as professional negligence matters, this perspective allows inclusion of concepts such as open dialogue and the role of apology in the resolution process, in addition to litigation strategies and procedures. For more information, see the International Network on Therapeutic Jurisprudence, David Wexler, director, at www.therapeuticjurisprudence.org. There is also a Healing in the Law project, sponsored by Fetzer Institute, at www.healingandthelaw.org.
The founder of 'collaborative law' is Stuart Webb of Minneapolis, Minn. Collaborative law was originally a family law model in which the parties and their attorneys contractually agree at the outset that they will not litigate. They focus on resolution and problem solving without the threat of court filings and process. Thus, unlike other forms of alternative dispute resolution in which a lawsuit is filed first and then referred for mediation or arbitration, mutually satisfactory cooperative resolution is the focus of all parties from the outset. Collaborative lawyers work with their clients and each other, volunteer information to aid with resolution and strive for a collegial atmosphere. In collaborative divorce, a team of professionals is assembled to assist in creating the foundation for sustainable solutions. Estate planning and probate practice often requires coordination of family members, business partners and other professionals (financial planners, accountants and so on), in fashioning a sound estate plan or reconciling an estate tax audit. Similar examples abound in other business law-oriented practices: business entity formation and operations set-up; business growth and development involving mergers and acquisitions; plans for downsizing; employment or corporate benefit planning; and situations requiring team coordination and cooperation to avoid problems that might lead to litigation. The concepts of collaborative law have evolved into an organization called the International Academy of Collaborative Professionals, governed by a multidisciplinary board of directors and advisory board. More information is available on its website, www.collabgroup.com. The next annual conference is in Vancouver, B.C., Oct. 17-19, 2003.
Holistic Justice or Holistic Law
Some would say that all of these vectors are subsets of holistic law, while others would say that holistic law is a separate vector unto itself. The basic focus in holistic law is looking at the whole picture — the lawyer’s role, the client’s responsibility, the impact on the community — and seeking an answer to the situation that benefits the greatest good and promotes healing and completion. Holistic lawyers are often trained in other disciplines, from health-care professions to counseling to energetic healing, and may use those skills in their legal work as well. The International Alliance of Holistic Lawyers has a website, www.iahl.org, and it hosts annual conferences for holistic lawyers to come together to network, share and provide support for this approach.
Pioneered by professor Ed Dauer at University of Denver College of Law (UDCL), preventive law refers to an approach where the parties and their attorneys are proactive in limiting their exposure to litigation. This practice aims to minimize the risk of legal disputes and maximize professional opportunities, while providing suggestions for practicing law or business in compliance with the law so that individuals and corporations can best use their resources and capitalize on their profits. according to the website for The Preventive Law Reporter. The quarterly publication of UDCL for more than 15 years, it is dedicated to increasing the awareness and practice of preventive law. See www.preventive-law.org.
The need of the legal profession to support the growth of this approach has not escaped the notice of law schools. Founded originally at the UDCL in 1986, the National Center for Preventive Law is now housed at California Western School of Law (CWSL). See www.cwsl.edu. CWSL is also home to the Louis M. Brown Program in Preventive Law; see www.cwsl.edu/mcgill/mc_brown.html. The late Louis Brown’s work on preventive law dates back to the 1950s, based on the premise that 'the legal profession can better serve clients by investing resources in consultation and planning rather than relying on litigation as the primary means of addressing legal problems. This theory recognizes that while litigation is sometimes necessary to address past wrongs, the fact that one ends up in an adversarial proceeding may be evidence of a lack of planning or communication. By applying foresight, lawyers may limit the frequency and scope of future legal problems. For example, in a corporate setting, a legal department focused on preventive law would put its attention on training and educating managers to predict and prevent conflicts among employees and with others outside the company.
Creative Problem Solving
Also based at CWSL, this approach encourages lawyers to use the broadest array of creative problem-solving techniques to achieve better results for their clients. The law school teaches the kinds of creative thinking processes that are often taught in progressive business schools. It encourages lawyers to be trained in creative thinking and to have many different tools — in addition to litigation — at their disposal. Creative problem solving seeks many points of view and examines problems for their relational impacts at all levels: individual, institutional, societal and international. It seeks to develop solution systems based upon what is learned about a problem, rather than what is habitually done. It is a caring approach that seeks transformative solutions to redefine problems, expand resources and facilitate enhanced relationships between the parties. Legal educational programs that include such notions and techniques set a standard emphasizing the development of broader and more encompassing approaches to legal professional services. Awareness of this development can be used to evaluate legal education or continuing legal education options for lawyers seeking to expand and enhance their skills in practicing law. See www. cps.cwsl.edu.
With more than 1,000 programs in North America, more than 2,000 in Europe, Australia and New Zealand and initiatives under way in Central and South America, Asia and Africa, restorative justice has emerged as a social movement for justice reform. Nationally, almost every state is implementing restorative justice at state, regional or local levels, and a growing number of states have officially adopted its principles and policies, with judges, prosecutors and defense attorneys leading the way. The American Bar Association has issued a formal endorsement and guidelines for application of restorative justice programs and principles.
Rising rates of incarceration and corrections budgets have challenged the long-standing assumption that punishment (or retribution) is the only way or the best way to respond to crime. Our traditional system of punitive/retributive justice asks three questions: Who did it? What laws were broken? What should be done to punish (or in some cases, treat) the offender? Instead of viewing crime primarily as a violation of law (requiring punishment), restorative justice emphasizes one fundamental fact: crime harms people, communities and relationships. A restorative justice inquiry poses three very different questions: What harm resulted from the crime? What needs to be done to 'make it right' or repair the harm? Who is responsible for the repair?
Traditionally, offender accountability has been viewed as compliance with program rules or as taking one’s punishment. But accepting punishment is passive and requires no responsibility or affirmative acts from the offender. A restorative justice approach holds the offender accountable by facilitating and enforcing reparative agreements, including restitution. It recognizes that we must give offenders the opportunity to right their wrongs and redeem themselves, in their own eyes and in the eyes of the community. Victims and the community must have the opportunity to take active roles in the resolution of crime. Restorative justice views our crime problem as a community matter that can never be adequately addressed by delegating the sole responsibility to police, courts and correctional systems.
Restorative justice is not any one program, but rather, a different paradigm for understanding and responding to issues of crime and justice. It takes its most familiar forms in victim-offender mediation/dialogue (VOM) programs and victim-offender reconciliation programs (VORP). Other responses to crime include: family group conferencing; community sentencing circles; neighborhood accountability boards; reparative probation; restitution programs; restorative community service; victim and community impact statements; and victim awareness panels.
VOM and VORP programs bring offenders face to face with the victims of their crimes, with the assistance of a mediator or facilitator — often a community volunteer. Specialized training is required to ensure the safety, integrity and success of the process. (Program directors, staff, volunteers and board members are often attorney-mediators.) Victim participation is always voluntary; offender participation is voluntary in most programs.
In mediation/dialogue, crime is personalized as offenders learn the human consequences of their actions, and victims have the opportunity to speak their minds and their feelings to the one who most ought to hear them, contributing to the victim’s healing. Victims get answers to haunting questions that only the offender can answer. The most commonly asked questions are: 'Why did you do this to me?' 'Was this my fault?' 'Could I have prevented this?' 'Were you stalking or watching me?' Victims commonly report a new peace of mind, even when the answers to their questions were worse than they had feared.
Offenders take meaningful responsibility for their actions by mediating a restitution agreement with the victim to restore the victims’ losses in whatever ways possible. Restitution may be monetary or symbolic; it may consist of work for the victim, meaningful community service or other actions that contribute to a sense of justice between the victim, others affected by the crime and the offender.
VOM/VORP programs have been mediating meaningful justice between crime victims and offenders for about 30 years and are supported by a substantial body of research. Remarkably consistent statistics from a cross-section of the North American programs show that about two-thirds of the cases referred to programs result in a face-to-face mediation. More than 95 percent of the cases mediated result in a written restitution agreement. More than 90 percent of those restitution agreements are completed within one year. In contrast, the rate of payment of court-ordered restitution is typically only 20 to 30 percent. Recent research has shown that juvenile offenders who participate in VOM/VORP subsequently commit fewer and less serious offenses than their counterparts in the traditional juvenile justice system.
Most VOM/VORP programs limit their work to property offenses or offenses of lesser violence, committed by juveniles. The fast-growing trend is to expand the application to adult offenders and crimes of severe violence, including homicides. In juvenile offenses and in minor crimes committed by adults, restorative justice processes may be substituted for, or supplementary to, court action. In crimes of severe violence, restorative justice has seldom been a substitute for prosecution, but it has been used to create more meaningful sentencing for offenders and their victims.
VOM/VORP is not appropriate for every crime, every victim or every offender. Individual, preliminary meetings between mediator and victim, mediator and offender are essential for careful screening and assessment according to established criteria. Even if not appropriate for mediation/dialogue, the resolution of most crimes can benefit from some application of the principles of restorative justice.
For more information about restorative justice, consult the following: Victim-Offender Reconciliation Program (VORP) Information and Resource Center, www.vorp.com; Victim Offender Mediation Association, www.voma.org; International Centre for Justice and Reconciliation, www.restorativejustice.org; Center for Restorative Justice and Peace-Making, http://ssw.che.umn.edu/rjp; or these print resources: Restoring Justice, Daniel Van Ness and Karen Strong (Anderson Publishing Co. 1997); Restorative Justice: A Vision for Healing and Change, Susan Sharpe (Edmonton Victim Offender Mediation Society 1998); Transcending: Reflections of Crime Victims, Howard Zehr (Herald Press 2001).New Approaches to Mediation
The first approach to transformative mediation is based upon a book by Robert A. Baruch Bush and Joseph P. Folger, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition (Jossey-Bass 1994). In this process the parties in conflict can change the quality of their conflict interaction. The focus is not only on resolution, but consciously emphasizes transforming the interaction from negative and destructive to positive and constructive. Practitioners use the complementary models of 'empowerment' (facilitating and supporting the considered, deliberate decision-making of the parties) and 'recognition' (highlighting opportunities for voluntary interpersonal perspective-taking and understanding). The focus is on revealing and understanding the underlying dynamics of the conflict, to both resolve the presenting issue and prevent future similar ones. For more information, see also the website for the Institute for the Study of Conflict Transformation at Hofstra School of Law, www.hofstra.edu/Law/isct. It demonstrates another educational option for anyone embracing visionary law concepts, particularly within professional practices focused on litigation or handling and resolving any other types of conflicts.
Gary Friedman and Jack Himmelstein, co-founders and co-directors of The Center for Mediation in Law, detailed at www.mediationinlaw.org, teach another transformative mediation model dedicated to integrating mediative principles into the practice of law and the resolution of legal disputes, with a focus on empowering the people involved. Their model is described as the 'understanding model.' In it, the goal is to reach deeper levels of values and meaning, and to attain the means to more lasting and healing resolutions generally not even addressed in adversarial proceedings. Such approaches often have the power to heal even profound social wounds.
Attorney Barbara Ashley Phillips, author of The Mediation Field Guide (Jossey-Bass, 2001), has still another distinctive approach that focuses on the 'inner aspects' of conflict resolution. She is director of the North American Institute for Conflict Resolution, and its website, www.crtraining.org is also a resource for materials on forgiveness. See particularly www.crtraining.com/forgiveover.htm#to.Problem-Solving Courts
Community Lawyering, or Community-Oriented Lawyering, is a movement where the lawyers, especially those in government, public interest and similar settings, work together to address the underlying problems that result in clients being in court, as well as to promote the welfare of the community and each in relationship to one another. Community lawyers take on projects that get to the source of cases that recur in the court system. Housing issues are an example of one issue addressed by community lawyers. Instead of litigating one tenant issue after another, a community lawyer might work to create standards for rental units, for example. For other examples, see the website of Roger Conner, a visiting fellow with the National Institute of Justice in Washington, D.C., at www. communitylawyering.org. He describes this model as a way of practicing law by attorneys who take a direct working interest in the peace and safety of particular places, and work to generate outcomes the community values in addition to winning cases. Community-oriented lawyers work in a wide variety of settings, such as prosecutors, police departments, municipal attorneys, non-profits, private firms, criminal defenders, judges and law school clinics.
The focus in this approach is on the peaceful resolution of disputes, and many lawyers involved consider themselves to be peacemakers. They express that value in many ways. Some have actually created organizations dealing with international conflict, like Ambassador John McDonald, a lawyer, diplomat, former international civil servant, development expert and peace-builder concerned about world social, economic and ethnic problems, who spent 20 years of his career in western Europe and the Middle East and worked for 16 years on United Nations economic and social affairs. His current work is as chairman and co-founder of the Institute for Multi-Track Diplomacy, which can be reviewed at www.imtd.org.
Others seek to heal and bring peace at a more personal, energetic level like Jill Dahlquist and Johanna Halgren (an attorney and psychotherapist, respectively) facilitators of The Group Peace Process. Their work is described at www. grouppeace.com. Sharif M. Abdullah, a former lawyer, has written and spoken on campaigns for expanding the consciousness for peace, as the founder and director of www.commonway.org. His most recent completed project helped bring peace to Sri Lanka, ending a long-term war. Some mediators consider themselves to be peacemakers. And more than a few mainstream litigation lawyers, traditionally perceived as 'hired guns,' if asked would no doubt admit that they act as peacemakers in their work.
Lawyers often seek relief from personal stress through meditation and then discover that meditation leads to further growth. The Center for Contemplative Mind in Society, www. Contemplativemind.org, has a program focused on law. Through Contemplative Law retreats, questions and ideas from both a contemplative and legal perspective are addressed, including the nature of winning and losing, the role of compassion in adversarial situations, truth and 'right speech,' Socratic and contemplative methods of inquiry, action and non-action, separation and connection, and listening. Many lawyers are integrating their spiritual and religious practices into their legal life. Pioneered by Steven Keeva’s book, Transforming Practices, Finding Joy and Satisfaction in the Legal Life (Contemporary Books, 1999), this approach to law allows for the inclusion of the lawyer’s spiritual values, as well as those of the client. Keeva’s book looks at several different approaches based upon values and life purpose viewing the practice of law as a 'ministry' focused on healing, service, mindfulness, contemplation and listening. See Keeva’s site at www. transformingpractices.com.
Project on Integrating Law, Politics and Spirituality
The project is a group of lawyers and legal educators committed to: 1) the integration of spirituality and politics; and 2) the incorporation of a spiritual-political understanding into American legal culture. The national conference on the Politics of Meaning, held in Washington, D.C., in 1996, drew some 1,800 people committed to a new spiritual-political vision of social transformation. Growing out of that conference, the law task force has met by a monthly conference call since that time, has held annual retreats and has made presentations and organized several events around the country. Members of the task force have written and spoken widely on the need for legal culture to transform itself to address the social alienation — those distortions in human relationship resulting from living in an isolated, individualistic and materialistic culture blind to the communal longings of the human soul — that is at the heart of much social conflict. The project is hosted by New College of California, where its leader, Peter Gabel, teaches in its public interest law school as well as its program on culture, ecology and sustainable community. Gabel was a founder of the Critical Legal Studies movement, is co-editor of Tikkun magazine, and the author of many articles and essays, some of which are collected in his book, The Bank Teller and Other Essays on the Politics of Meaning (Acada Books, 2000). For more information contact Washington lawyer Paul Lehto at firstname.lastname@example.org.
This is a relatively new approach being developed by Eva van Loon, a lawyer working on an advanced counseling degree. Van Loon has noted that many clients are not even clear enough about their goals to choose their lawyer or to make decisions through the process. Van Loon’s program trains lawyers and others to help clients identify their plan of action so they may choose the appropriate lawyer and then pursue the appropriate course of action in their legal dispute. The approach incorporates into law practice notions of informed consent as they are applied in the medical context. She can be reached at Mettalaw@aol.com.
Many lawyers have found practice support by hiring a coach for themselves; other lawyers find they are suited to the role of being a coach. At times, lawyers hire coaches to work with their clients. A professional coach in this context is a trained professional who assists clients in creating their futures and designing plans to achieve those futures. A coach is more of a personal partner who works with clients and helps them make their own decisions and take actions consistent with their commitments. This approach may enhance the delivery or pursuit of legal services for some clients. A coach assumes the client has the answers, knows what there is to do, but may need some guidance in discovering those answers and then implementing them for effective long-term change. Coaching skills include deep, committed listening, intuition and inquiry. Some lawyers who apply coaching skills with their clients may also take on unbundling services, assisting pro se litigants and coaching divorce clients. Some lawyers are also discovering that they enjoy coaching other lawyers to find greater fulfillment in their lives and the practice of law. There are now many coaching schools and training programs. See a list of coach training programs accredited by the International Coach Federation at www.coachfederation.org/training/programs.htm. Coach U, Inc., one of the first coach training programs in the world (see www.CoachInc.com), sponsors a special interest group (SIG) of coaches who work with lawyers, which is held by telephone conference; and interested lawyers are encouraged to attend. The SIG is co-hosted by Warren Simonoff, a coach and former court reporter, and Stewart Hirsch, a coach and attorney. For more information on participating in the SIG calls, contact Warren (warrensimonoff@ qwest.net) or Stewart (s.hirsch@ strategicrelationships.com) directly. Other web resources for information about lawyers and coaching include www.lawyercoaches.com and www. renaissancelawyer.com.
The list of approaches described above is not all-inclusive. The models philosophically overlap one another representing, like a web, separate developments or directions in an overall cultural evolution of considerable magnitude — hence their description as vectors. In addition to these innovative models, many lawyers have taken it upon themselves to seek additional training that supports their work as lawyers in this new paradigm. Lawyers are learning conflict resolution skills and are being trained in counseling, listening, coaching and even massage therapy and energetic healing as additional tools to resolve conflict. While some are leaving law practice for related careers, many are reclaiming their calling as lawyers and refusing to fit into the litigation mold, creating their own unique approaches. Apology, forgiveness and other healing tools have found their way into the legal process and have altered the experience of the legal system for many stakeholders. Such visionary approaches offer hope for a new legal system that truly works for everyone and raise issues of how to train lawyers for this new model.
ABOUT THE AUTHOR
J. Kim Wright recently joined the firm of Peace-Making, Family Law Without War, in Portland and plans to sit for the July bar exam in Oregon. She is the founder and president of Renaissance Lawyer Society (www.renaissancelawyer.com), a non- profit organization with the mission of creating a legal system that works for everyone. Prior to relocating to Oregon in 2000, she practiced holistic family law in North Carolina. For more information, see www.jkimwright.com or e-mail her: email@example.com.
Dolly M. Garlo is a founding member of the RLS board of directors. Licensed to practice law in Utah and Texas, she founded her own law firm in Austin, Texas (www.GarloWard.com), a general civil practice with a focus on legal services for health care professionals and facilities involved in governmental regulatory disputes, with an emphasis on preventive law and client legal education. Contact her by e-mail: DMGarlo@AllThrive.com.
© 2003 J. Kim Wright and Dolly M. Garlo