Where I’m Coming From . . . and Want to See Us Go

As I embark on this blog, it might be helpful to lay out my general perspective, which is probably similar to some of your views.

This post (and probably some of my future posts) is different and longer than the norm, but hopefully you will find it worth your time to read.

I came of age in the 1960s and 1970s and saw lawyers and the courts as tools for social justice.   This built on a noble tradition celebrated in a poem written by my grandfather (who graduated from NYU Law School in 1900). I was inspired by Warren Court decisions, legislation promoting civil rights and other progressive causes, Nader’s Raiders, impact litigation, legal aid, and more.   I went to law school because I was interested in public interest law.   Many people in the ADR field have similar backgrounds and interests, which is not surprising considering the shared motivation to help people.

Although strong legal advocacy can be valuable in advancing these causes, I became increasingly aware of its limits and dysfunctions.   I graduated from law school in 1980 and, although I didn’t ultimately want to practice law,   I realized that law school left me (and virtually all my classmates) incompetent because of the lack of practical training.

So I decided to create my own internship by practicing law for a while before shifting into some policy or political work.   I did contract work for various firms and eventually became an associate for a solo practitioner in San Francisco.   Predictably, I did not like the adversarial dynamics of litigation, which I found to be generally wasteful and counterproductive.   I would have left practice within a few years if I hadn’t attended a CLE program on mediation with Gary Friedman.   Starting in 1982, I took several mediation trainings with Gary and others and I set up my own solo general practice, focusing on divorce mediation.

Back then, mediation (and ADR generally) truly did seem to be an alternative to litigation because the legal system didn’t include or respect much of what we today consider ADR.   (Actually, the legal system had assimilated or recognized earlier generations of ADR such as small claims courts, juvenile courts, workers comp, and labor arbitration.)   Faith in ADR (particularly mediation) was related to what Judith Resnik called “failing faith” in adjudication.   The legal system seemed hopelessly adversarial and early ADR leaders developed innovations at arm’s length from the legal system.   Soon after I started practicing mediation, I published my polite manifesto, Mediation Paradigms and Professional Identities, which assumed that mediation was an essential vehicle for providing an interest-based approach to dispute resolution.

Fast forward several decades and we see that the U.S. legal system generally has embraced ADR. These days, the Supreme Court has a strong bias in favor of arbitration.   Many courts require parties to mediate before they can go to trial.   The largest corporations regularly use ADR, hiring prestigious high-priced practitioners, many of whom are retired judges.   Virtually all law schools include ADR in the curriculum and a good number of schools specialize in it.   Our field is quite different than when I took my first mediation training in 1982. Lawyering and mediation practices have co-evolved, transforming each other.

The ADR community in law schools and bar associations focuses primarily on the role of neutrals.   This is not completely true, as reflected by lawyering courses taught by ADR faculty and the ABA Section of Dispute Resolution’s lawyer-as-problem-solver award.   But even so, I hear colleagues in our field talk much more about neutrals than advocates.   This is understandable given the history of the recent ADR era and the fact that the space focusing on advocacy is already occupied in these institutions.

For several reasons, I think it is in our interest as legally-oriented dispute resolution academics and practitioners to increase our focus on legal advocacy.

First, that’s where most of the action is. The total volume of neutral activity is but a tiny fraction of disputing activity in litigation.   Most of the time, lawyers handle their cases without the help of private neutrals and I don’t expect that to change significantly.

In legal disputes, most advocacy probably happens in pretrial processes, and most litigated cases are resolved through negotiation.   Although we often think of pretrial litigation in terms of formal discovery and contested motions, lawyers perform other activities in pretrial.   In a forthcoming article based on interviews with good lawyers, I argue that Good Pretrial Lawyering [Involves] Planning to Get to Yes Sooner, Cheaper, and Better.

Second, lawyers are the gatekeepers and managers of litigation.   Cases generally go to mediation or other neutral dispute resolution processes only after a pretrial process is underway.   Indeed, lawyers often use neutral processes only late in litigation, after costs and conflicts have escalated.   To get the benefits of earlier resolution, lawyers need to take responsibility for making that happen.

Third, poorly-trained lawyers import counterproductive adversarial attitudes and tactics into neutral processes, thus reducing the benefits of those processes.   To maximize the benefits, lawyers need to shift away from the lawyers’ standard philosophical map that Len Riskin described.

Finally, for now, I return to the ideals of the legal profession that my grandfather celebrated.   Although lawyers are often denigrated in our society, sometimes with merit, lawyers often perform a very valuable social function.   We, in the ADR community, can make an especially valuable contribution to help lawyers provide the best service they can to clients and society.

Of course, I am NOT suggesting that we abandon our teaching and scholarship about neutral processes.   That’s very important and we should continue it.   Part of that involves teaching lawyers how to use these processes most effectively, such as in books on mediation advocacy by Hal Abramson, Dwight Golann, and Spencer Punnett, among others.   Chapter 8 in my book, Lawyering with Planned Early Negotiation, gives advice about engaging neutral dispute resolution professionals.

My book, a guide to help lawyers be better advocates in pretrial litigation, includes a short introductory section that provides more information about why I came to the views described in the book and this post.

(In this post, I focused on ADR dealing with disputes in and around the legal system.   Of course, important dispute systems are honeycombed throughout society, though we law-trained folks often overlook them.)

To be continued . . .

I hope you found this post useful. I would love to hear your reactions in a comment below or an email to me.

2 thoughts on “Where I’m Coming From . . . and Want to See Us Go”

  1. Brycen, thanks very much for your comment. I’m glad my post was helpful for you as a law student. It reflects what I try to convey to my students.

    I would quibble with the statements that “negotiated agreements are an alternative to formal litigation.” You may have been referring to trials, which occur in only a small fraction of lawsuits.

    In fact, lawyers and parties reach agreement during the litigation process ALL THE TIME. They not only resolve the ultimate issues through negotiation in most cases, but they reach numerous other substantive and procedural agreements throughout litigation.

    I will write more about this in upcoming posts. So stay tuned.


  2. I found the bit of history behind ADR processes over the past several decades to be quite interesting. Your points about how ADR has come to be embraced by the legal system show how perspectives have changed with regards to ADR by lawyers and the legal community. This post made me, as a law student, think harder about the relationship between ADR processes we learn about and the more traditional, formal legal process: are they mutually exclusive? Or exactly how integrated can these processes be?

    As you pointed out, this view has changed over the years. Clearly, negotiated agreements are an alternative to formal litigation. However, “Many courts require parties to mediate before they can go to trial” (illustrating the point that the newer forms of ADR can work directly with the traditional litigation process). I think, as you illustrated, it is important to keep the focus on increased legal advocacy. I especially liked your point on the idea that lawyers are the “gatekeepers and managers of litigation.” As a lawyer, one has the duty of efficiently adjudicating a dispute, while also providing his client with the best service and end result. This is where the lawyer must decide where using neutral processes is best.

    Thank you for your post. Getting a bigger-picture view of ADR processes is beneficial as I continue to learn both the law and specifically about ADR this semester.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.