Introduction to the Movement
An Introduction and History of the Movement
As long as there have been disputes, there have been methods of resolving them. From today's perspective, the adversarial legal system was a big improvement upon the armed combat and duels that preceded it and it has endured for centuries as the preferred method of resolving disputes institutionally. Argument, analysis, precedents, and drawing fine distinctions helped the law evolve to a finely edged sword.
Parallel to the formal and institutionalized legal system of courts and lawyers, people have always continued to pursue informal solutions. Beginning about 35 years ago, these informal processes began to be integrated into the formal institution of law. Mediation moved from an informal process to a more accepted option within the court system. Many courts set up mediation programs, mediators became recognized and valued as having a particular set of skills, and mediation even became mandatory in certain kinds of cases. Courts found that their work load was eased by the introduction of mediation.
In the 1990's, around the world, other approaches began to find their ways into the formal legal system. In 1974 in Kitchener, Ontario, Judge Gordon McConnell was asked to consider a restorative approach to a juvenile offense, allowing the juveniles to face their victims. He could find no precedence in law to allow this idea. However, he was tired of the revolving door of justice and was looking for a new approach for justice so he allowed the victim-offender meeting. Since then hundreds of restorative justice programs have developed, including in the Departments of Correction of at least 18 states, with others underway. (See http://www.sfu.ca/crj/kelly.html for the story of the young man who was that first case.)
"In the late 1980's, after practicing traditional civil law for eight years and then family law for an additional seventeen years, Stuart ‘Stu’ Webb, a family law practitioner in Minneapolis, Minnesota, was approaching burnout. He, like many of us, who practice in the field of family conflict, hated the adversarial nature of his practice. It was becoming harder and harder to tolerate the schizophrenic nature of trial and family practice. Incivility seemed on the increase rather than the decrease. In other words, he'd had it.
"Prepared to close down his practice, he started taking courses in psychology at the local university. It did not take long, however, for Stu to realize that his future did not lie in becoming a psychologist. Then he started thinking. If he was willing to start over, maybe he could come up with a different way to structure a family law practice, which kept only those parts of his practice that, he truly enjoyed.
"So Stu started experimenting. After some successes and failures, Collaborative Law was born. In this family law model, attorneys work collaboratively with the parties to achieve a win/win solution for everyone. Information is shared and the parties agree that they will not litigate during this process. When disagreements arise, often outside experts—such as financial planners, therapists, child advocates—are brought in to help create a solution that will work for the entire family. If no solutions are possible, the parties can still litigate, but then they will have to retain new and different lawyers.
"Stu started practicing collaborative family law exclusively as of January 1, 1990, but he could not practice collaboratively by himself. So, he started seeking other family lawyers who would be willing to try the collaborative model. He began on a case-by-case basis asking for a collaborative commitment." (This segment excerpted from Nora Bushfield's History and Development of Collaborative Law at http://www.iahl.org/articles/04_History_and_Development.htm). Collaborative law began to catch on with other family lawyers in the late 1990's and since 2000, over 10,000 collaborative lawyers have been trained in the approach.
Similar stories can be told about other approaches: Preventive Law, Therapeutic Jurisprudence, Community Lawyering, Integrating Law, Politics and Spirituality, Holistic Law, Contemplative Law, Law as a Healing Profession, Lawyers as Coaches, Interdisciplinary Practice, etc.
Around 2000, various leaders and thinkers in the legal field started noticing that the innovative approaches had much in common. They were more humanistic, focused more on peace-making, and were interested in healing not only the clients but the lawyers and others in the profession.
Susan Daicoff, professor of law at Florida Coastal School of Law in Jacksonville, FL, is one person who has been instrumental in bringing this shift to the attention of the legal profession and legal education. Professor 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, 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. The Comprehensive Law movement has expanded from the conventional litigation practice and offers 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.
In 2000, Kim Wright took Professor Daicoff's ideas about Comprehensive Law and began to build upon them, creating a web site at http://www.renaissancelawyer.com which gave birth to an organization of lawyers called the Renaissance Lawyer Society, ("RLS"). RLS was based upon the theories of conversations spreading like viruses that are espoused by Malcolm Gladwell’s The Tipping Point and Margaret Wheatley’s work. The goal was to encourage debate and inspire new possibilities for lawyers. RLS became a hub of the movement to transform the legal profession to focus on these new innovative approaches. Around the country, lawyers began exploring these new approaches which allowed them to return to the reason most of them went to law school: to help others and to be able to live a good and meaningful life. In its first three years, the RLS web site, with virtually NO marketing received over 200,000 visitors. Law schools around the country began to provide links to the RLS web site. Considerable anecdotal evidence points to a shift in the profession including one whereby promising young lawyers are no longer willing to “sell their souls to the company store” and are asking quality of life questions about time off and whether part-time work is an option for new parents. Even a few short years ago, such questions would have not been spoken.
Besides offering very 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 was documented by former ABA Journal associate editor Steve Keeva’s research and writing on lawyers. (Keeva's work may be read in archives of the ABA Journal or in his book Transforming Practices.) 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, leading to greatly increased job satisfaction for lawyers.
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 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 that other tools are sorely needed in order to solve the dispute problem the client has presented to the lawyer. The new techniques include the following:
**Utilizing law as a modality for healing and helping, not only of problem resolution;
**Focusing on the future and reconciling relationships, listening, forgiveness, completing and moving on – rather than simply looking to the past and punishing transgressions;
**Viewing legal issues with inclusion of the existing or possible on-going relational context of the parties, or between the parties and the greater community, for purposes 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 over-arching societal values are all addressed and 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 the highest good of the client and society, and of legal practitioners;
**Consciously constructing a law practice environment where judges, lawyers and legal staff can change and grow as authentic human beings;
**Believing that the legal problems occur within a system that is an organic process which can respond to the needs of clients, society and lawyers alike;
**Defining a legal system that is based not only on problem solving, but also supporting everyone to live and work together in peace.
These new visions in law are not intended to replace traditional practice in every case, nor are they appropriate in every instance, but they are appropriate in many instances but most lawyers are unable to apply them.
Over 95% 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 not be the opportunity for 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 foundational part of these visionary new 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 lawyer's personality type, 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.
The following pages will describe each of the vectors that Professor Daicoff discusses as well as some potential vectors.
