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Millennium problem solving Improving the legal profession.

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CPR INSTITUTE FOR DISPUTE RESOLUTION
......
ADR EDUCATION.........
Page 105
Associate Attorney General
Raymond C. Fisher explains why the
U.S. Justice Department wants more
emphasis on problem-solving in the
legal profession.
............
STATE ADR
Page 105
There’s been a lot of ADR activity
in Michigan recently. Laurence D.
Connor of Detroit’s Dykema Gossett
describes rule changes under consideration by the state Supreme Court,
and a recent decision authorizing and
setting standards for pre-dispute
employment arbitration agreements.
.............
ADR TECHNIQUES
Page 106
Can the practice and study of ADR
be improved over dinner? Researcher
Christopher Honeyman of Madison, Wis., updates his Theory-toPractice work with details about the
Moveable Feast.
SPECIAL SUPPLEMENT:
ADR 2000......
Page 107
Excerpts from the third CPR online
seminar, “The Art of Mediation
Advocacy: An Insider’s Guide,” in
which moderator Peter Zeughauser
and 10 panelists discuss preparing
and participating in mediation
sessions.
WWW.CPRADR.ORG
VOL. 17, NO. 6 JUNE 1999
Millennium Problem Solving:
Improving the Legal Profession
BY RAYMOND C. FISHER
For some time, it has been clear that in many
cases the customary, formal ways of conventional litigation have less and less utility in a
society that is increasinglycomplex, competitive,and expensive.
O n many occasions, it is
neither cost-effective nor substantively advantageous to proceed by way of lawyers making
arguments, engaging in a blitzkrieg of discovery and motions,
and then waiting for and appealing- decisions from administrative and judicial bodies. Clients want to
remain in control of their disputes, but YOU
can’t control the outcome of a matter once it
is presented to a court for resolution.
Moreover, when a court or jury decides
who wins and who loses, that ruling may not
resolve the mderlying problems that caused
the suit to be filed in the first place. Thus,
this movement is growing, not
out of the benevolent altruism
of the participants, but rather
out of the recognition that in
many circumstances, there are
better ways to resolve disputes.
We know all this. And
becauseAttorney GeneralJanet
Reno knows that ADR works
well when used in appropriate
circumstances, we are continuing to grow our
program at the U.S. Department of Justice.
NOWI know that some have suggested using
(continued on page 120)
..................
...........
ADR BRIEFS
Page 117
An environmental ADR training
resource debuts on the Web.
............
CPR NEWS
Page 118
An anecdote about finding and hiring
a neutral, as well as new information
on accessing CPR materials via the
Internet.
DEPARTMENTS
ADR Briefs .......................
Page
Cartoon by Chase ............. Page
CPR News ........................
Page
CPR 20 Past, 20 Future __.
Page
Online Info .............. Page 118,
Index Info .........................
Page
117
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124
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In the W&e of Rule Changes,
A Michigan Tradition May Fade
BY LAURENCE D.
C~NNOR
Two recent developments signal a growing
recognition and acceptance ofalternative dispute resolution by the state
courts in Michigan. The developments indicate broader ADR
use, and less reliance on a unique
Michigan ADR process.
First, on May 10, the Michigan Supreme Court has ordered
publication of proposed new
and amended court rules for
public comment. The rules would authorize
trial courts to require parties in general civil
and domestic relations actions to attempt to
resolve their disputes through ADR, including mediation, minitrial, summary jury trial
and early neutral evaluation. The rules and
amendments were recommended to the Supreme Court by a special dispute resolution
task force appointed by the Court early last
year. The task force included
lawyers, judges, court administrators and in-house counsel
from around the state.
In its report delivered to
the Court in January 1999,the
task force recommended the
adoption of rules that would
allow a judge to order a nonbinding ADR process in all contested civil
matters. The rules provide that counsel intending to try the case and persons with full
settlement authority could be required to attend the ADR proceedings. The court would
(continued on page 122)
Improving Problem Solving In the 2 I st Century
d
(continued from front page)
ADR in cases involving the government and
have been turned away by our lawyers. I want
to remind you that the department is a very
large place, with many lawyers. Not all of
them have gotten our message. We are continuing to promote ADR in the department,
and to increase our use of mediation and other
dispute resolution processes.
But if you have a case where you think ADR
should be used, and you’re not getting anywhere with our lawyer, please give Peter R.
Steenland Jr. , the Justice Department’s senior
ADRcounsel, a call, and we’ll take a look at it.
Not every case is suitable for ADR. Sometimes, we litigate because a precedent is important, and on other occasions, we may
simply need a ruling by the court.
We are also hard at work in our InteragencyADRTask Force, which the Attorney
General chairs. This group, established by
President Clinton, is charged with promoting ADR throughout the federal government.
These efforts require continued attention and
“very often.” Only about 13% percent reported using mediation “frequently.” Another
43% used mediation “occasionally,”and almost 30% said they rarely used this technique
for the consensual resolution of disputes. So
there’s still a lot of work to do.
We must continue to promote training,
and we must continue to encourage change.
Day by day, dispute by dispute, person by
person, we must be relentless in sharing with
others what we know about ADR and the
great benefits that can result from using dispute resolution in a wide array of contexts.
THE ATTORNEY GENERAL’S IDEA
According to Attorney General Reno, our job
would be so much easier if the future generations of lawyers received, as an integral part of
their legal education, exposure to problem-solving theory and practice in law school. In other
words, the Attorney General wants all of us to
work together with our friends and associates
at law school faculties across the country to in-
CPR MEETING HIGHLIGHTS I N ALTERNATIVES
This article i s adapted from a speech a t the CPR 20th Anniversary Winter Members Meeting i n January i n New York. A special Alternatives supplement on the
meetings‘ proceedings appeared a t 17 Alternatives 67 (April 1999), summanzing
four other sessions held a t t h e meeting on corporate ADR programs, Year 2000
disputes, European ADR and the Harvard Negotiation Project‘s presentation on
difficult conversations i n legal practice. I n addition, last month an adaptation
of another meeting speech, by U S . District Court Judge Wayne D. Brazil of
Oakland, Calif., appeared a t 17 Alternatives 85 (May 1999). Next month, Afternatives w i l l feature a special supplement on the proceedings o f the 20th Anniversary CPR Spring Meeting, held this month i n Santa Fe, N.M.
sustained emphasis, because there are still a
lot of people who have not yet gotten the
message. In both the public and the private
sectors, we still have a long way to go before
declaring our efforts a complete success.
There is much to learn from the Cornell/
PERC report on ADR use by U.S. business.
Only 5.6% of the 606 participants, chosen
from the Fortune 1000corporations reported
that they used mediation to resolve disputes
Raymond C. Fisher, the Associate Attorney General
of the US. Department of Justice, was nominated
by President Clinton to the Ninth US. Circuit Court
of Appeals earlier this spring. This am’cle is adapted
from a speech he gave a t the CPR 20th Anniversary
Winter Members Meeting i n January i n New York.
corporate problem solving into the education
that every budding lawyer will receive.
At the annual conference of the American
Association of Law Schools in January, the
Attorney General commended schools that
already have negotiation clinics and ADR
programs. We all recognize that this is an
important step. But not all students take these
courses, and the benefits that flow from these
academic experiences are not widespread
throughout the graduating classes.
Let me define what I mean by problem
solving in a law school context. It is an approach to legal education that emphasizes the
ability of a lawyer to resolve a dispute without
necessarily resortingto litigation. Problem solving respects the lawyer‘s role as a litigator, but
emphasizes that a lawyer also serves his or her
dient by actingas a counselor, a decision maker,
and a planner. Problem solving demands an
examination of the true needs and interests of
all those involved in a dispute, rather than looking only to the legal positions that are espoused
by parties in legal pleadings. Problem solving
places great emphasison creative thinking, and
builds on traditional legal education through
three steps.
First, a problem-solving approach to legal
education would take the core curriculum of
contracts, property, civil procedure, and other
courses, and add an academic ingredient in
addition to the traditional casebook method
of legal education. Most of us were educated
through the study of appellate decisions that
presented important principles of law.
With a problem-solving approach, students would not only learn the holding of
these cases, but they also would diagnose the
actual disputes in which these legal holdings
were rendered. They would learn why these
disputes arose; they would identify underlying interests of all the parties, and working
with their professors, they would construct
solutions to these problems that do not involve a litigated outcome.
Problem solving, therefore, involves a
deeper inquiry into selected cases in the context of traditional legal education.
Such learning also can be achieved by using transactional case studies, adapted from
a teaching method long used by business
schools. These transactional case studies are
valuable vehicles for teaching problem-solving skills, for they present problems to a student as a client would present them to a
lawyer. In this manner, the law student would
be required to identiG, analyze, and propose
solutions that could resolve the dispute in a
consensual manner.
Second, problem solving also requires the
use of interdisciplinary insights, and exposure to academic disciplines beyond traditional jurisprudence. I’m especially proud of
the fact that Dean Paul Brest at Stanford Law
School, my alma mater, is at the forefront of
this effort. He is a strong proponent of lawyers needing to understand such things as
decision theory, risk analysis, and economics. This interdisciplinary approach also can
(continued on following page)
(continued from previous page)
give law students exposure to the social sciences, so that they can better understand the
intuitive components of human behavior
and thereby recognize that nonlegal issues
often dominate the legal disputes our clients present us.
The third component of problem solving
involves a greater emphasis on negotiation,
dispute resolution, and collaborative working relationships. Academic courses in negotiation will give law students exposure to the
obstacles that impede consensual resolution,
and the means for overcomingthem. Dispute
resolution courses expose students to mediation and other ADR processes.
Such courses and clinics can teach students how to resolve problems before they
deteriorate into contentious litigation that
can devastate otherwise healthy, ongoing relationships. By learning why dispute resolution works, and how to use it, law students
will understand why and how adversarial
conduct can be both inefficient and harmful to their clients’ interests.
THE OLD WAY WON‘T WORK
These skills are essential for future generations of lawyers, because the old way of resolving disputes through traditional civil
litigation will not be responsive to the needs
of many clients. Attorney General Reno said
in a recent speech on this subject: “In an
age when much of a law firm’s business involves international transactions, new
mechanisms need to be established to deal
with disputes so that we can resolve conflict in a multicultural, international environment. With business moving at the
speed of the Internet, the prospect of having a dispute resolved in a civil action several years after the suit is filed is simply
unacceptable.” Thus, law firms as well as
government agencies will have a need for
young lawyers who can practice problem
solving on behalf of their clients.
I encourage you to join the Attorney General and the Department of Justice in this
effort to improve law school education. When
you are recruiting new graduates, let the
schools and the applicants know of your interest in hiring graduates who have been exposed to this kind of expanded legal
education. If we create a market for hiring
problem-solving lawyers, the law schools will
respond by providing these courses.
As distinguished members of respected
firms and well-known corporations, you
surely have colleagues at law schools who are
not part of the ADR movement. I encourage
you to speak with them about the Attorney
General’s message, and about the need to take
the best system of legal education anyone has
ever seen, and make it even better.
Problem solving is helpful in other contexts, also. At a Manhattan community court,
I saw lawyers and judges acting in nontraditional ways, dealing with criminal conduct
that threatens the well-being of a neighborhood or community. These remarkable people
are bringing problem-solving skills to an area
of the law where new vision and insight are
sorely needed.
We are also encouraging schools to adopt
programs that will train both teachers and
students in peer mediation, so that disputes
can be settled on the playground in a peaceful rather than a violent manner. I met with
California educators who told me about innovative peer mediation programs some are
experimenting with as ways of dealing with
school-violence problems. Here, too, is an area
where we-as lawyers-can help our young
people see that dispute resolution can be
kinder and gentler than t h e m image ofwinners and losers -with aggressive lawyers as
the hired guns. In short, fostering alternative, nonlitigious ways to solve problems and
resolve disputes can have a positive impact
on our society at large, particularly for our
children.
We’ve got a great deal of work to do. We
have to address immediate issues such as Y2K
and other matters. But we also must take steps
to ensure that dispute resolution becomes an
enduring and integral aspect of the legal practice in the 21st Century. By promoting problem solving in all that we do, we can improve
the legal profession.
i
A ‘Moveable Feast’ of ADR Practitioners and Researchers
(continued from page 106)
other perspectives. And building close and
continuing relationshipsbetween research and
practice holds promise of our being able to
delve deeper into what really happens in mediation, and other forms ofdispute resolution,
than when the researchers are forced to rely
on surveys and other arms-length data. Practitioners and policymakers, in consequence,can
expect to do better work for our clients if we
become more willing to facilitate outside analysis from all these perspectives.
Yet resistance to ideas among practitioners
runs deep enough that many concepts that
might lead to better and bigger practices can’t
get through unless we first allow for building
dispute resolution-specific examples, studies
and inquiries. And researchers cannot ordinarily hope to obtain sensitive data without
collaborationwith practitioners and program
managers. We practitioners have lots of ex-
cuses for hiding anything we are afraid to see
in print.
A series of experiments that Theory to
Practice ran, in which we worked out realistically tension-filled scenarios with leading
scholars and mediators playing something
close to their accustomed roles, demonstrated
that researcher-practitioner relationships are
fraught with possibilities for disappointment.
It became clear that if any such relationships
were to be started on solid ground, we had to
make progress on some basic understandings.
So we invited two dozen leading practitioners and scholars to dinner.
BREAKING BREAD OVER ADR
This is more unusual than it sounds. Dinner,
as a setting, has the inherently collaborative
overtones traditionally associatedwith breaking of bread together. But normally people
tend to associate with people who are quite
like themselves. If our eventual product was
to have credibility in some rather sensitive
areas, diverse viewpoints were essential elements. We had to schedule an “event.”
Because the topic of immediateconcern was
national in scope, we decided to do this in tandemwith a major conference.This way, enough
people of every persuasion already would be
present, and travel expenses were already accounted for. (The Theory to Practice project
only paid for the meal.) We also decided on a
less-than-formal oyster bar as the gatheringsite,
rather than a typical buttoned-down business
dinner establishment. This strategy worked,
because we were able to attract a remarkable
degree of intellectual horsepower from both
sides of the fence, and an informal atmosphere
was immediatelyapparent.
But there’s more to designing a good encounter than that. For example, what is the
(continued on page 123)
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