Business Conflict Blog by Peter Phillips
Lincoln famously wrote: “As a peacemaker the lawyer has a superior opportunity of being a good man.” Without challenging this proposition, I have often wondered to what extent lawyers are uniquely positioned to achieve “goodness,” or to do “good” for others. Don’t teachers also have a “superior opportunity” to do good? Landscapers? Artists? Butchers?
Kim Wright, Eileen Barker and Ann Marie Puente conducted a panel at the 2017 ABA Dispute Resolution Section Meeting investigating “expanding what is possible for lawyers.” The panel sought to show “how we can lead as peacemakers and changemakers in the current social and political environment.”
Kim Wright’s most recent book is “Lawyers as Changemakers.” She described the “Integrative Law Movement” as part of rapid change in a broad swath of professional society, including shifting corporate governance paradigms and re-emergence of holistic medical practice. She cited factors such as public disrespect for lawyers, lawyers’ disrespect for each other, and lawyers’ frequently reported personal distress and dissatisfaction, as incentives for professionals to self-reflect and critically assess. One outcome, she proposes, is a re-adoption of ancient and fundamental values of individual purpose and worth – unfashionable though those terms may be to some. She cited a trust and estate lawyer who stated that his firm’s mission was “helping clients to express their love for those most important to them.” She seeks to “reunite law and love,” in recognition that all of law deals, in one way or the other, with relationships. And the incorporation of these fundamental values into the individual legal practice may render one’s self a “changemaker” – in principle movingly illustrated by a remarkable 4-minute film on the consequence of the re-introduction of wolves to the Yellowstone National Park.
Eileen Barker described the process whereby she left litigation and opened a mediation practice as an intentional choice to conform her professional life with her personal desire to foster relationships and wrestle with the challenges of forgiveness. She wanted to use her legal training to “help people to heal, and be at peace.” She found, moreover, that helping people resolve a particular conflict was frequently only the tip of the iceberg, merely the first step of transforming and liberating people away from other-directed blame and towards self-directed nurturing and growth. She noted Ken Cloke’s observation that, “in every conflict, forgiveness, like revenge, is always possible.” She insists that there is a fundamental human impulse to forgive, an impulse towards empathy, that can either be encouraged or dissuaded by facilitation. She made it seem obvious: “Most people want peace.” Pressed on the fact that most people also want moral vindication, she noted that forgiveness can also include acknowledgement of harm, accountability, restitution and other elements of moral suasion.
Ann Marie Puente urged a design analysis to problems that lawyer often address. Regulation is a sign of design failure, she suggested – pollution is a flaw of systems design, as is injustice. Thus, design is admittedly intentional, value-laden and outcome-oriented. Were lawyers to follow a design of numerous informal face-to-face interactions, she argues, outcomes would be more attractive to those effected by them. She termed it a “culture of informality,” allowing porous and humane interactions that would yield progressive and enjoyable outcomes. This principle is particularly urgent in times that are violent, uncertain and insecure, as she suggests we find ourselves now. Humanity, not technology, will drive change.
To some degree, the concepts conveyed in this program are applicable to landscapers, butchers, and anyone who serves clients. Our job is to fix our client’s problems – the dripping faucet, the tasty portion of beef, the elegant outcome of a conflict. All of us who serve others express our caring for them, and are required therefore to bring our integrity and values – one of which is to refrain from saying “This is what you want” in favor of asking “What do you want?” Those who are uncomfortable doing so when practicing law may find themselves rightly confused.
At the same time, if the desire to be at peace and the desire to morally vanquish are both intuitive, one can still ask whether the lawyer the professional agent best qualified to respond to both needs.
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