Canaries in the Litigation Coal Mine

Early coal mines didn’t have good ventilation, and miners were at risk from dangerous gases in the mines.  So miners would bring canaries into the mines because they were sensitive to the gases and provided a warning of dangerThe canaries would sing until they died from the gases.  When they stopped singing, miners knew to get out and escape the danger.

Although the analogy is imperfect, collaborative lawyers are like canaries in the “litigation coal mines.”  Of course, litigation isn’t lethal and collaborative lawyers don’t even go into these mines any more – they negotiate and don’t litigate.  Indeed, the analogy actually is backward because the “canaries” (collaborative lawyers) have flown the coop while the “miners” (litigators) continue to toil in sometimes toxic environments.

Although litigation provides many vitally important benefits for individuals and society, it  can harm everyone it touches, including litigators.  Because collaborative lawyers find litigation to be extremely traumatic, they value the opportunity to handle collaborative cases and avoid litigation.

This short article grows out of a talk I gave to Woody Mosten and Ron Ousky’s collaborative practice consultation and study group about how collaborative lawyers could apply concepts from the LIRA book.

In my session with Woody and Ron’s group, I asked people to respond to several questions including if and how litigation was traumatic for them, what they love about collaborative practice, what is frustrating for them in collaborative cases, and what is hard working with clients in these cases.

The article summarizes their responses and highlights the damage that litigation can cause law students, lawyers, and parties.  It emphasizes the importance of lawyers helping clients manage their conflicts as well as possible while minimizing the harm to clients, people in their lives, and themselves (i.e., the lawyers).  It includes links to practical resources to help lawyers do so, especially when they need to litigate.

Faculty might encourage your students to read this article (and/or The Role of Law in Legal Disputes) to put the “hidden curriculum” of law school in context.

Take a look.

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