Law as a Healing Profession

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.

Thinking About Pompeii

I’ve got to admit, I think about Pompeii from time to time.  When Vesuvius buried that Roman city nearly 2000 years ago in ash, the inhabitants were frozen in time.  They exist today as human forms only – their personal histories, their essence, erased.  Forms only.  Who were these individuals?  None were “famous.”  Their names do not pass down the generations.   But in their time, as they breathed and gazed on sunlight, they touched others with simple acts of kindness by the boatload.  There must have been the teacher who encouraged a child and transformed his view of himself…and the wife who cared for an ill husband whose life faded -before a mountain erupted to bury her as well.  No doubt those of light spirit brought smiles and laughter to others who were otherwise burdened by their own cares – daily worry must have been as much a part of First Century Roman life as it is in ours.  Those of gentle heart or fierce passion touched their fellows and raised their spirits.   Gifts were given out of the blue; visits were made to the grieving to lighten the weight of their loss; countless acts of simple kindness were made without any thought of compensation or return.  And in a literal flash, they were all gone.  Does that render the love and life-force-energy they shared pointless?  We read history to hear stories of the storied.  Yet the fabric of life is made up of the millions and millions of normal, loving, caring, giving, simply kind people who came before us and who live among us today.  Every day I experience acts of kindness in my own home – simple gestures that no-one but me will ever know about.  I do believe that these loving gifts have a power – a grace – that is transcendent.  So when my mind wanders to these forms in ash, I invariably think about the blessings of simplicity and kindness all around me every day – and do everything I can to let them fill my heart.  May 2011 be a year of kindness we provide, and receive….and recognize.

Labelling People – Thinking About Narcissistic Personality Disorder

Recently, the New York Times reported that the mental health diagnostic “bible,” the DSM is going to drop Narcissistic Personality Disorder in its 5th Edition.   Laura Smith, Ph.D. provides a good explanation for why this was done, here.  While an interesting development in its own right, the move brings to mind an overriding concern about the easy use of labels like “narcissistic.”  Many, many, times have I heard people in recent years label someone as “narcissistic.”   It’s not that “people who believe the world only exists if seen through their own eyes” don’t exist – and it’s not that these folks don’t cause a lot of distress to those close to them. (I remember hearing in my training that the only way you see a person with NPD in therapy is if their spouse or family basically says, “Get help on this or we’re outta here!”)  San Diego mediator Bill Eddy identifies people struggling with NPD as one of a handful of “high conflict personalities” who challenge helping professionals mightily.  But here’s the problem – it’s easy to label, isolate and dismiss another person, losing sight of the fact that this rigid shell of a personality they present to the world covers enormous, old pain.   Eddy has suggested that the 4 major “high conflict personalities” at their core, are protecting themselves from the pain of early, constant violations to their developing, tender personalities.  The “borderline” personality is driven by the Fear of (emotional) Abandonment, suffered so early.  The “antisocial” personality is driven by the Fear of Being Dominated.  The “histrionic” personality is driven by the Fear of Being Ignored.   The “narcissistic personality” is driven by the Fear of Inferiority.  In fact, these people with hugely (over)inflated views of themselves have buried within their hearts a glass shard of failure to measure up – of not being good enough.  When we almost cavalierly label others as “narcissists” (or any other thing) we rob them of their humanity and pain.  Of course,  in their striving to protect themselves from the ancient, overwhelming wounds that are long-buried within,  they may often overwhelm and deeply injure their intimates.  But as with all injuries which we suffer at the hands of others, our own healing comes in part through our own halting efforts to understand and even hold compassion for the other. It’s not necessary to label the other so that we don’t take on responsibility for our own injuries.  It was never our fault anyway.  To humanize ourselves without dehumanizing the person who wounded us is an ongoing challenge and, I think, righteous goal.

Putt Like the Pros – Don’t Get Fat

I just got interested in golf…at 59. My lovely 17 year old daughter has, for years, gauged an activity by whether it was “fun.” That’s a big word for her, and judging by the kind of person she has turned out to be, I’d say “fun” is good.
Golf is fun. Funfunfunfun. Of course, when the day comes that I care how many strokes it takes me to get from the tee to sinking the ball into the cup, I’ll maybe change my tune. Yet, for now, just getting the ball up the hole, to the green and into the cup is an accomplishment. My wife and I just saw the most recent Harry Potter movie. Our family has read and listened to these wonderful books since the first. On the way out of the most recent movie I leaned into my wife’s ear and said, “This installment…Just moving the ball down the course.” Yes, golf imagery is seeping into my discourse.
So I just went on line to see what websites had to say about putting, which remains for me a dark art. The site I hit had a side-bar ad showing a very unattractive, exposed belly (actually grabbed to accentuate the fat) and beside it the flat result of…something. Obey the rule is all I could garner. For not the first time I thought, “What a shame.” Our culture pushes, presses, shoves us into desire for no fat, six pack abs, tight buns – while seducing us with fat laden meals that taste great and convert themselves into the handfuls that web ads use as a cudgel to sell something that will give us a fabulous body. There is cruelty in our society that masquerades as advertising or culture.
I have yet to see an ad for integrity, courage in day-to-day living or just plain satisfaction with our lives.