When it was over, I felt like Daniel having survived the lion’s den. It wasn’t what I had anticipated at all but in retrospect it makes perfect sense. After all, how are people supposed to react when you challenge their most fundamental assumptions?
Last month, I participated in an old fashioned debate at the annual conference of the Washington State Bar Family Law Section between the proponents and opponents of collaborative law. As I assured the 200+ attendees, I am an unabashed supporter of this process, which essentially commits lawyers and parties to staying out of court. Yet I acknowledge that there are elements of collaborative law that would understandably give lawyers pause—like the agreement that both lawyers will withdraw if either party seeks relief from a judicial officer or the reliance on good faith and the voluntary exchange of all relevant information.
The lawyer speaking for the “cons” (no small irony in the term to me) is an extremely articulate and passionate believer in her own right. Her comments reminded me of political commercials which aim to isolate one sensitive, emotionally resonant point and then repeat it—over and over.
She depicted a horrifying scenario involving the choice not to go to court and get a restraining order against the alcoholic father who proceeds to ram his child-filled car into a wall, killing everyone. Despite the dubious authenticity of this kind of story, her audience gobbled it up so enthusiastically that they were just an eyelash away from intoning, “You tell it sister,” and “Amen to that.”
During the question period, everyone who spoke pointed out the weakness of the collaborative model. A number of people simply dismissed the approach. All the while, the voice inside my head was saying, “How very interesting. Why is the resistance to this approach to dispute resolution, one that certainly has its place on the ADR spectrum, so intense and emotional?”
Quick rewind to September of last year when I attended a symposium at Topeka’s Washburn University Law School on “Humanizing Legal Education.” The keynote speaker was Larry Krieger, a pioneer and leader within the community of law educators. Self-effacing and witty, he provided us with very meaty material on the impact of law school on the well being of students. Yet I was later told that his preeminence is not recognized among the law faculty at Florida State where he teaches. The new AALS section on humanizing legal education, which he has championed, is still considered an upstart.
We Need To Change Our Attitude Toward Change
Whether in practice or in the academy, lawyers appear resistant to the idea of humanizing the institutions of law. Why would this be? We are all humans, after all. Even the resisters can acknowledge in theory that achieving balance between work and personal lives is a valid concern. Few can really dispute, as well, that the adversarial system of dispute resolution has caused us to devote an enormous amount of thought and creativity to thwarting the interests of others, without regard to the merit of their claims or universality of their needs.
What better time to address this question, since fundamentally what we are addressing is our attitude toward change—a very popular word these days. But change isn’t new. We lawyers have been buffeted by forces we can’t control for the past 250 years. Today, concepts that we consider cornerstones in the way we think about ourselves professionally—zealous advocacy, the billable hour, the Socratic case method of legal education and the brass ring of partnership—are showing cracks. Late 20th century values are eroding all around us: wills are outsourced to India; businesses are demanding tight auditing of fees and more flat fee arrangements; aging partners are cut loose if they can’t produce; many states, including Washington, are exploring the feasibility of having non-attorneys perform more legal tasks.
Change Is Inevitable
Other changes are coursing through the legal universe. Many are technical and entirely consistent with the way lawyers are comfortable thinking, like the evolution of intellectual property law. Others go right to the core of how we see ourselves in the world. These are the changes, I believe, that cause the discomfort (or even hostility) among those who seem resistant to making law more humane. The challenge to binary thinking—the concept that the “adversary” is a person or business with valid interests and concerns that need to be addressed—is a challenge to our professional orthodoxy. This shouldn’t be a surprise. Law as an institution is a quintessentially conservative force in society: it resists any change but the incremental and precedented. This is one way lawyers have historically protected society—by supplying a drag to rash revisionism.
Yet the tool many of us employ in the service of conservatism is an unfortunate cynicism. What better target for the professional cynic than humanism? It’s like a perfect storm—the studiously hardheaded vs. the hopeful-hearted. Now there’s a match that may be a wipeout in the courtroom or the conference room. It’s not a barrel of laughs in the conference ballroom either, I can tell you that!
Why are so many attorneys hostile to collaborative approaches to law? Some feel that adversarial lawyers truly believe they are protecting their clients. Others fear that the collaborative approach will lure clients away and impact their bottom line. Still others sensed that collaborative practitioners effect a “holier than thou” attitude. All these objections are valid, to a degree.
Yet I believe we are afraid of change—and that we cannot face the realization that a gathering force will impact all of us. The messengers of change will be the targets of fear. It’s an historical moment, and I was glad I had a front row seat to see how this conflict played out in the microcosm of a family law conference.
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