Arbitration & Mediation

Separating the People from the Problem at the ABA DRS Conference

By Victoria Pynchon

The law school professor asked for a show of hands.

"How many lawyers are in the room?"

There was something about the way he shook his head, just slightly, from side to side, that communicated "too many lawyers," followed by a sigh that I read as  "I'm still going to smack them upside the head."  

I connected to my twitter network and tapped out  "now this speaker is going to dis lawyers - let me see if I can stay quiet." 

(image by the brilliant Charles Fincher at LawComix)

If disrespecting lawyers were an unusual event at ADR conferences, my "read" wouldn't have been so spot on.  But it's actually a category here:  the evils of litigation and its soulless practitioners. 

"The judicial system" began the law professor,

is a bureaucracy attended by people who are not employed by it.  Those people are lawyers who have been brain washed by law schools to eliminate emotion from their clients' conflicts; who have lost the ability to communicate with their clients; who strip context from conflict; and, who treat the people they represent like objects.

Ah.  Heartless functionaries of the evil judicial system.  Now that you've brought it to my attention, professor, I can see that I'd spent a 25-year litigation career doing the work of the devil.  Not caring about my clients.  Not awaking at 3 a.m. to craft a better strategy to vindicate my client's rights; developing the courage (yes, courage) to stand in a courtroom, a shaky 28-year old kid, telling the Judge or a jury why they should recognize the violation of my clients' rights and grant him or her the remedies available in law and equity.  A career in which I used my mind and body as a shield against repression and injustice.  For everyone.  The rich and powerful, who deserve justice as much as the poor and inpecunious, whose fights I also took up with every bit the vigor and dedication as the others who paid my bill.  Though you may not agree, I considered my work worthy even when representing my insurance company clients against the claims petroleum companies seeking recompense for their intentional contamination of the soil under our feet and the groundwater some of us are required to drink.

Was this panel of law professors -- who wanted to put feelings and socio-cultural context and identity back into my clients' disputes -- simply unaware that I, a veteran of the successive civil rights movements of the mid-20th and early 21st century, am a person with an identity and feelings, who has represented my clients with heart and passion and dedication in a socio-cultural context which has, at times, made my work not simply a social good, but a goddamned heroic struggle?

But this isn't about me.  It isn't even about the flaws in the adversarial system or the profound imperfections in the chaotic state of mediation theory and practice today. 

This is about a conversation that mediators, lawyers and academics are not having and a rancor that inexplicably prevents us from taking the best of all systems to create something genuinely original and powerful.   

I'm inclined to believe that these predictable eruptions of anti-lawyer sentiment have something to do with power and who each "faction" believes possesses it.  The law professor on the panel seemed envious, for instance,  when he said that the "bureaucracy of the judicial system has a monopoly on the coercive power of the state."  It was important enough for him to say it twice.  

"Only the Courts can compel people to resolve their disputes in the adversarial system."

If my response hadn't been so positionally lawyerly (old habits are hard to break) I wouldn't have picked a fight with this guy during "audience participation" even though I felt deeply aggrieved by his accusation that more than half his audience were heartless, brain-washed, automotons serving an unjust legal system.  You'd like he was Kafka who had just returned from The Penal Colony.  We were engines of state repression.  How could he misread us - his brothers and sisters in the law- so thoroughly?

Had I been thinking more clearly, I would have asked some or all of the following questions with as little rancor as possible:

Do you really believe that attorneys -- those who sit before you today -- are the soulless, emotionless bureaucrats you say they are?

Is there something you would like those of us who remain in legal practice to do to help you help us help our clients?'

Are you envious of our coercive power?  Is it frustrating -- watching your cousins "at the bar"  -- use their power to compel people to attend to court proceedings when your own dispute resolution mechanism requires participants to volunteer?   

Is it painful to you that the people you believe will rise up and demand ADR solutions someday have not yet voluntarily knocked on ADR's door in sufficient numbers to create the non-adversarial legal utopia you long for?

Are we playing a zero-sum game here?  Fighting over territory?  Is my dispute resolution "turf" preventing yours from taking seed?  Is it impossible for us not only to co-exist, but to thrive in collaboration with one another? 

Do you really believe that we legal practitioners do not want the same social goods that seek?  The passably fair resolution of my neighbor's boundary line dispute?  The roughly just distribution of public goods?  The tolerably unbiased treatment of the governed by the government? In short, justice in an imperfect world? 

We are on the same team and we were all trained with the same intellectual rigor.  We require evidence to convict a man or woman of a crime, not hearsay, not speculation, not prejudice, but evidence.  The law and lawyers liberated more than half the citizenry from second-class status, at the same time that women and African Americans, Native Americans, "Chicanos," "Latinos," persons "of color" Muslims, Jews and Catholics fought to enter the American political and commercial "establishment" through the court system you revile.

Instead of resenting and demonizing one another; instead of letting our own personal disappointments cause us to disrespect and demonize one another, why don't we all sit down, break bread, have a drink, take a walk in Central Park and find out how we might be of some assistance of each other.

Full post as published by Settle It Now Negotiation Blog on April 17, 2009 (boomark / email).