Law as a Healing Profession
Posted in Collaborative Law, Lawyers' Wellbeing on 03/21/2011 12:31 pm by Joseph Shaub
I was fortunate recently to be asked to write an article for the Washington State Bar monthly magazine about the new trends in law and how they contribute to civility in the profession. I thought I’d reproduce it here because the theme of law as a healing profession is so important today.
Starting in around 1960 and continuing through the ‘80’s, the practice of law was marked by the ascendancy of litigation as both the engine of economic growth in the profession and the prevailing ethic. Competent, smart, hard-working and, above all, tough – these were the values which permeated our professional world. Aggressive was good, results (measured in monetary terms) were paramount. Adversarial litigation exploded as a practice form, and with it came the concomitant rise in interpersonally destructive behavior. The oft-referenced rise in incivility among lawyers was both striking in its metastatic growth and often shocking in its brazenness. Isolated voices would express concern about the law’s shift from a “profession” to a “business” and its effect on the well-being of both the lawyers and the clients they served, but during this time they remained just that – isolated. But in the late ‘80’s and early ‘90’s, these voices coalesced into what law professor Susan Daicoff has called the “Comprehensive Law Movement.”
If there is one driving force behind this, now formidable, movement within our midst, it is the recognition that law should not be an instrument for inflicting avoidable personal (and interpersonal) damage in the service of reaching a specific “legal” objective. Indeed, if there is one theme which is shared by these approaches to practice, it is that when we can manage to turn down the heat generated by adversarial conflict, we are actually able to arrive at solutions which are far more satisfying to our clients. It is about the ascendancy of civility in how we conduct our affairs – not just to be “nice” but to achieve effective results. The various “vectors” of this Comprehensive Law Movement include:
• Collaborative Law: Arising 20 years ago from the creative mind of Stu Webb, a Minnesota family lawyer, Collaborative Law is predicated on the notion that the last place to resolve disputes between wounded, divorcing individuals is an adversarial litigation process. In Collaborative Law, all professionals and the clients sign a contract explicitly abandoning litigated adjudication as the means for resolving disputes. There is a generous use of neutral professionals to support the individuals in managing their emotional challenges, making parenting decisions and untangling their financial community.
• Therapeutic Jurisprudence: In 1990, law professors David Wexler and Bruce Winnick began to write about the various psychologically destructive consequences of legal action. They explicitly joined the social sciences of law and psychology in an effort to enhance the therapeutic possibilities inherent in both legal process and result. Starting in the mental health courts, TJ (the subject of more than 600 articles and 18 books) has had a significant impact in such diverse practice areas as workers compensation, sexual orientation law and business negotiation.
• Transformative Mediation: First discussed in a 1994 book by law professor R. Baruch Bush and communications professor, Joseph Folger (The Promise of Mediation) this form of dispute resolution seeks to fashion a resolution that reaches beyond a settlement of the legal issues between parties. Baruch and Folger emphasized the promotion of each party’s empowerment and voice and the recognition of each party and their concerns by the other. TM, at its highest expression, explores the power of empathy and forgiveness, making mediation a vehicle for growth and reconciliation.
• Restorative Justice: More than 25 years old, RJ is founded in the criminal justice system. It is an avenue for healing between the criminal offender, the victim, and their community. It is founded not on adjudication of guilt and sentencing, but rather upon dialogue, future problem solving and, critically, the offender’s acceptance of accountability for his/her conduct and the damage which has resulted. RJ seeks to heal the deep rift which arises from the commission of criminal acts.
• Holistic Justice: Again, from the single seed from the brain of attorney Bill van Zyverden, Holistic Law seeks to “promote peaceful advocacy…encourage compassion, reconciliation, forgiveness and healing.” HJ emphasizes the spiritual elements of dispute resolution. The International Alliance of Holistic Lawyers is a vibrant, 20 year old organization.
• Humanizing Legal Education: Florida State law professor, Lawrence Krieger, authored an influential research report on the destructive impact of the law school environment on the well-being of law students in the early ‘00’s. His observations found a very enthusiastic audience in the legal academy and today there is a section on Balance in Legal Education which seeks to encourage and support avenues for law students to strengthen their resources for dealing with stress and deepen their interpersonal skills.
Back in 1974 we used to talk about law school as training to become “high speed legal tools.” This led to troubling blindness to a fundamental truth – we, lawyers, are people. Our clients are people… with dreams and troubles and a fundamental need for connection. During the last 20 years, our colleagues, by the thousands, have striven to sculpt a new and different profession which is wiser and more civil – not because it is nicer, but because it is a return to our roots as lawyers as counselors and supporters of our clients’ lives and endeavors.
