Lawyers as Peacemakers, Practicing Holistic, Problem-Solving Law

A FUNDAMENTAL SHIFT OF MIND AND INTEGRATION OF HEART INTO LAW
by J. Kim Wright

The interdependency of humankind, the relevance of relationship, the sacredness of creation is ancient, ancient wisdom. —Rebecca Adamson

When I was practicing law back in the 1990s and looking for alternatives to litigation, my office mate, Bob Martin, told me about the International Alliance of Holistic Lawyers (IAHL). For a couple of years, I ignored the organization and reinvented the wheel of holistic law on my own.

By 1999, I’d created a cutting-edge holistic law practice in Graham, North Carolina. Called the Divorce and Family Law Center, the practice included two lawyers, a mediator-counselor, two social work interns, two paralegals,and several law student interns focused on creating holistic, out-of-court settlements.

After many interactions, the North Carolina Bar and I had worked out a plan that fit within ethical guidelines, allowing an interdisciplinary approach to divorce. I had the first law website in North Carolina. I had consulted with a feng shui consultant about my office design and we sometimes cleansed the office by burning sage. I took high-level personal development seminars, some of which were only offered in San Francisco. I thought I was way out there, out of the box, on the cutting edge, so when I got the invitation to the IAHL conference, I decided it was a good time to go. I imagined being the star of the show. As a further attraction, the conference was held in Hawk’s Cay in the Florida Keys in November! For weeks, my desk held the photograph of the island, surrounded with blue water, as a beacon.

I think I spent most of the conference in shock, from the first time we all stood in a circle and held hands on Thursday night to the consensus board meeting on Sunday afternoon. I’d never experienced anything like it. Compared with these seasoned holistic lawyers, I was mainstream, maybe even conservative. One couple combined yoga and law to help their clients resolve conflict. There were lawyers who were channeling and doing energy work and talking about spiritual and emotional issues that were foreign to me. I remember telling Jill Dahlquist that she scared me. My world had exploded with possibility, and there were so many new ideas. I didn’t know what to think, and I wasn’t sure what to do with it all. I was tempted to climb back into my comfortable box.

Somehow, through the shock, I was able to hear the presentations about the peacemaking approaches. Susan Daicoff, an associate professor of law at Florida Coastal School of Law, presented her research on lawyer distress, lawyer personality traits, and the emergence of a trend she’d come across. She found that some lawyers were breaking out of the mold and creating new ways of practicing law. She noticed that these lawyers expressed higher satisfaction and fulfillment with the practice of law. Daicoff referred to the shift as “comprehensive law.”

What we are doing in our legal system is not working. Clients are unhappy with their lawyers, with the system, and with the outcomes of the process. Lawyers are extraordinarily unhappy or even impaired. Nonlegal dispute resolution mechanisms in society have failed and society is depending on litigative processes to resolve conflict. As a result, society in general is suffering from the effects of 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 old, outmoded monolithic system. All of these approaches attempt to optimize the well-being of the people involved in each legal matter and acknowledge the importance of concerns beyond simply strict legal rights. This more “comprehensive” form of legal practice is illustrated by ten converging “vectors” -- Professor Susan Daicoff

Professor Daicoff compares the evolution in law to medicine’s recent embrace of parts of alternative medicine and integrative medicine. The change began with early mediation and alternative dispute resolution programs that have now been integrated into traditional legal practices.

The IAHL included everything Daicoff talked about under the umbrella of holistic law, encompassing the notion of law as a healing profession. Some have adopted terms like “therapeutic jurisprudence,” “preventive law,” “restorative justice,” “law and healing,” “collaborative law,” “creative problem-solving,” “transformational law,” and “procedural justice” as specific expressions of comprehensive law. “Integrative law” has also been suggested as an umbrella term.

In fact, there is a good-natured ongoing debate among the leaders about what to call the collection of approaches, models, theories, and practice developments that I call “the movement.” My collaborative colleague, Chris Craig,talks about resolving a divorce as being like trying to put socks on an octopus. Characterizing this movement feels like that. Like the octopus, it is in constant motion. Creativity and adaptability are cornerstones of why the movement exists. Each leg of the movement operates independently. However, unlike an octopus, the movement has an unlimited number of expressions and many interrelationships, not just eight.

For example, restorative justice is generally utilized in the criminal context, but Ken Jaray in Colorado has created a form of restorative mediation for personal injury cases, bringing issues like apology and forgiveness to torts. Therapeutic jurisprudence has spawned many different problem-solving courts. Collaborative law was invented by Stu Webb, a holistic lawyer.

Some of the approaches spring from philosophical or theoretical considerations of the role of the lawyer in society. Therapeutic jurisprudence is like a lens through which we can examine the therapeutic or non-therapeutic impact of any action in the legal profession. Holistic law can describe one vector or philosophy of practice, or a collection of some or all of the philosophies. In this book, I’ve had to make some decisions about how to organize the material. Some of you will suggest that I could have organized it in different ways. I agree.

Like obscenity, most of us in the movement recognize it when we see it. Each of us talks about it in different terms, with different viewpoints and terminology. We generally agree whether something is aligned with the movement or not, and we distinguish common characteristics representing retreat from what are increasingly being considered the negative aspects of the adversarial process that have become the darlings of the media and sensationalized talk shows. Famous trials like those of O.J. Simpson, Michael Jackson, Amanda Knox, and most celebrity divorces, plus television show hosts like Maury Povich, Jerry Springer, and myriad other media role models of conflict exacerbation do not represent the highest good of society or humankind.

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. They are focused on optimizing well-being for all the involved parties by expressly seeking to eliminate brutal and contentious adversarial approaches to advocacy and problem solving, as well as endeavoring 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 psychological goals; an idea that is often described by the term “rights plus.”

“These visionary approaches tend to spring from ‘the heart stuff,’ qualities like collaboration, healing, restoration, peace-building, and human connection,” says Stella Rabat, a Kirkland, Wash., attorney who facilitates retreats on law as a healing profession - qualities the legal profession has always considered soft or suspect. It’s not that the “head stuff” must disappear; on the contrary, analytical skills and legal knowledge are crucial. But “there has to be more recognition of the human, relational aspects,” she says. “It’s not either/or. It’s both/and.”—As quoted by Barbara Stahura

There is more to this movement than just doing all the right things or creating labels and ways of talking about what we do. We often talk about a paradigm shift.

THE PARADIGM SHIFT

A “paradigm” is a worldview, a set of beliefs about what is real and true. A paradigm shift involves a shift in the framework of our beliefs, of how we view the world. This shift isn’t about just doing something differently; it is a shift in the entire context for what we do. Our worldview shapes what we see and what is important to us. Paradigm shifts often occur suddenly because of a discovery or new theory, like the change in perspective that occurred when mankind realized that world is not flat after all. It often starts with a reexamination of what we previously believed and knew to be true.

Originally a scientific term coined in 1962 by Thomas Kuhn, a paradigm shift refers to a shift in thinking such as the shift from Newtonian physics to Einstein’s theory of relativity. If (like me), you didn’t actually take physics and have always been a little fuzzy about it, there are other examples. The invention of the printing press was a paradigm shift in information technology. The introduction of the Internet was another.

A paradigm shift is often difficult to explain to someone who hasn’t experienced one. This is not a judgment about whether people who have experienced a paradigm shift are better than those who have not. Before I was a parent, many people tried to explain what it would be like. No one could have prepared me for the moment when I first held Bryan in my arms. While the hormones of childbirth might have had some impact on how I felt, they didn’t explain the enduring and profound shifts that continue 32 years later. I didn’t just have a new person living in my house - everything changed that day. My concerns were different. I was not the same person. The world was not the same world. I wasn’t wrong before I was a parent; I was just in a different paradigm.

Marketers caution against using the term “paradigm shift” because it has been overused. The paradigm shifts of new laundry detergents don’t quite communicate the power the term was intended to convey. My editor cringed and begged me to use another term, but it is the term that is used in the movement. We even considered making up a new term or using a common word in a different way. I researched the term and the ideas for days, hoping to find a better way to talk about the change of consciousness that must occur in a paradigm shift. I found some interesting attempts and will share many of them here, but in the end I returned to “paradigm shift” because it is the most fully descriptive term of the message I want to convey.

We lawyers really like to be able to quantify and explain things in concrete, scientific, rational terms. Many of us are wary of anything that is out of the ordinary. In teaching us to think like lawyers, law school discouraged our thinking about anything that was emotional, mystical, or spiritual. It wasn’t relevant. In this movement, in life, those qualities matter a lot and are extremely relevant. In reality, the law has gone through many paradigm shifts. The representative nature of jousting created a new reality for people who were used to tribal warfare. Common law created new expectations of consistency. I believe we are at the doorstep of yet another such advancement in the practice of law, a new paradigm.

Society made a big advancement by requiring symbolic battle rather than actual battle, by introducing a system of litigation where the sides presented their claims before a member of the elite, who decided the winner. Law school assumes this is the environment for the practice of law, where lawyers either do battle to resolve problems or assist their clients in pursuing their interests in a way that prevents battles from occurring. But always the underlying assumptions are that litigation might happen, so the best thing is to try to foresee any possible future troubles, keep your information and often your intentions confidential, and if you do get drawn into battle you do whatever it takes to win. Business people incorporated to protect themselves from liability. Now we have this huge, unwieldy and inhumane system where he who has the most money has the most influence, profits are everything, and millions of people go without vital necessities even in the midst of plenty. Millions more spend their lives in prison. Lawyers and judges are the linchpins to this system. The fundamental assumption is that we are separate and apart and potentially in conflict with each other, that there is not enough to go around, and that the strong (and smart) person must be well defended. If someone commits a crime, the proper reaction is to convict, then separate, punish, and deprive that person for some period of time. At some point thoughtful people will look at this and start to question,first the outcomes, which seem so obviously unsatisfactory, then the underpinnings and assumptions that keep them in place. In particular, lawyers find themselves jaded and dissatisfied with what they do with their time and their energy.

This is the vital question! I think this is the one central difference between the old and new paradigms; whether humanity is a whole, integrated organism and each person is entitled to being treated with love and compassion, or whether each person is separate and entitled to pursue his or her own egoistic interests to the detriment of others or without regard for the effect on others. Feminine vs. masculine worldview. It’s more than just making lawyers happier and better adjusted; it’s changing the relationship between citizens and jurisprudence.

Seems to me that the vectors, as you call them, have to do with application of the new thinking to different areas of the law. Restorative justice has to do with correcting structural issues in the criminal justice and penal systems. Therapeutic jurisprudence and problem solving courts deal with new approaches to the structure and role of the judicial system. Mediation, collaborative law, and holistic law are not structural changes but are alternative problem solving/problem avoidance techniques that are applicable to almost every area of legal practice. Modifications to legal education address issues of preparing incoming practitioners for a new universal legal model.

Those who are ready to forge something new have started by questioning the existential environment surrounding the legal system. What if we aren’t all separate and at odds with each other? What if the corrections system, with its focus on retribution, is ultimately dehumanizing and damaging to all of us? Maybe litigated divorces are bad for both kids and parents. Maybe pot smokers don’t belong in prison. Maybe sending a wrongdoer to prison doesn’t make the victim whole and doesn’t stop crime. Maybe litigators are excited and energized by the process of doing battle yet still question whether their efforts are meaningful in the larger human picture. Maybe we will always have problems and disputes and accidents and crimes but there is a better way to address these problems than suiting up in armor and hacking away at each other, symbolically or otherwise. But how do we get from here to there? And what is “there” when we get there? Do we try to modify the existing structure or dismantle it entirely? What new training is needed for lawyers and judges? How will the expectations of legal clientele need to change? How will the money part work? What new structures and institutions need to be constructed? —E-mail from Sheila Boyce to author

THE ADVERSARIAL PARADIGM

In law school, we were exposed to the adversarial paradigm in overt and subtle ways. The competition started when we applied and vied for a seat in the class, continued with the fight for grades and rank, and extended into law practice. We’re trained in the skills of litigation, in drawing fine distinctions that focus on the differences between people. We debate positions rather than engage in dialogue focused on understanding each other. Urban legends tell of law students using razor blades to cut critical pages out of research books. We hide the ball. We watch our backs. The political discourse and nightly news are adversarial and focused on sound bites and positions. The view is of a world where individuals protect their rights, territory, property, and selves from other individuals. In this paradigm, we are separate and our needs and values are at odds with each other.

THE OTHER PARADIGM

I think the paradigm shift comes in two parts: external and internal. The external shift is the process of learning about a new way to approach dispute resolution (collaborative law, mediation; in general, a non-adversarial and interest-based approach), training in those ways and practices, committing to make them a part of our toolbox as conflict resolution advocates or facilitators, becoming engaged in that community of like-minded practitioners and applying these processes and practices to actual cases. But the second part of the shift is the more profound part that follows these prerequisite steps above, and that is when we have internalized these processes and approaches so that they become natural and aligned with who we are philosophically and in our souls and how we approach our roles as solvers of problems and peacemakers. When this internal paradigm shifts happens within us, it becomes increasingly difficult to go back to the old, adversarial litigation-type models. Approaching disputes first from the non-adversarial, interest-based door then also becomes easier and flows much more naturally from within us. We find ourselves speaking, acting, and working with a much deeper conviction, passion, and grasp of what it is we are doing. Not only is the approach now different, but we are also different. To transform the way disputes are resolved, we have to first be transformed ourselves. —Michael Zeytoonian

There are other words that I can use to describe the new paradigm: “partnership,” “systems,” “oneness,” “unity consciousness,” and “teamwork” are all characteristic of the paradigm, but none of these words captures everything I’m talking about. Even after ten years in this movement, I’m not sure how to label this paradigm. That is why I often just call it “the movement.” Perhaps it is because labels are about separation and individuality. This paradigm is about connection and community. It recognizes that we are all part of a system, that our well-being is interconnected. Labels are fixed; the movement is dynamic, organic, flexible. It acknowledges our humanity but calls for the best in each of us.

It would be helpful if we began with a systems view of the world, which is holistic and much more dynamic than the Newtonian perspective we often begin with. Complex organisms (the divorcing parties and their children, not to mention extended families), constantly moving and changing, are a part of and actors in an incredibly complex ecosystem (not just in the environmental movement sense). —George Collis, CFP, CDFA, from an e-mail on the Collaborative Law Listserv

continue reading: The New Paradigm Illustrated